Uttarakhand High Court
"State vs Unknown on 20 July, 2021
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
THE HON'BLE THE CHIEF JUSTICE SRI RAGHVENDRA SINGH CHAUHAN
AND
THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA
BAIL APPLICATION NO. 1 of 2021
In
CRIMINAL APPEAL NO.226 of 2015
20TH JULY, 2021
Between:
Subhash Singh. ....Appellant
and
State of Uttarakhand. ......Respondent
Counsel for the appellant : Mr. Mukul Singh Dangi.
Counsel for the respondent : Mr. J.S. Virk, learned
Deputy Advocate General
for the State.
The Court made the following :
ORDER : (per Hon'ble Sri Justice Alok Kumar Verma)
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This application is filed on behalf of the appellant
Subhash Singh for bail in this appeal.
2. This criminal appeal has been filed by the
appellant against the judgment dated 05.06.2015, passed
by the learned Fast Track Court/Special Judge (POCSO Act),
Udham Singh Nagar in Special Sessions Trial No.05 of 2013,
"State Vs. Subhash Singh", whereby the appellant has been
convicted under Section 6 of the Protection of Children from
Sexual Offences Act, 2012 (hereinafter referred to as "the
Act, 2012") and sentenced to undergo life imprisonment
along with a fine of Rs.35,000/-; he has been convicted and
sentenced to undergo rigorous imprisonment for two years
along with a fine of Rs.5,000/- for the offence punishable
under Section 452 of I.P.C. Both the sentences are directed
to run concurrently.
3. Heard Mr. Mukul Singh Dangi, the learned counsel
for the appellant and Mr. J.S. Virk, the learned Deputy
Advocate General for the State through video conferencing.
4. Mr. Mukul Singh Dangi, the learned counsel
appearing for the appellant submitted that the appellant has
been implicated at the behest of the informant, who is the
father of the victim, due to enmity with the appellant. The
statement under Section 164 of the Code of Criminal
Procedure of the victim was recorded after more than one
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month of the incident, therefore, the statement of the victim
cannot be believed. In support of the said submissions, Mr.
Mukul Singh Dangi, the learned counsel for the appellant,
relied upon the judgment of the Hon'ble Apex Court in
"State of Karnataka Vs. Shivanna @ Tarkari Shivanna"
(2014) 8 SCC 913, wherein the Hon'ble Supreme Court has
observed that the Investigating Officer shall make
immediate steps to take the victim to any
Metropolitan/preferably Judicial Magistrate for the purpose
of recording her statement under Section 164 Cr.P.C.
5. On the other hand, Mr. J.S. Virk, the learned
Deputy Advocate General, appearing for the State, opposed
the bail application and submitted that the prosecution has
examined six witnesses and all the witnesses, including the
victim, aged about 11 years, have supported the prosecution
case. The medical examination report of the victim also
supports the prosecution case, therefore, there is no
illegality or perversity in the judgment as such the appellant
is not entitled to release on bail.
6. In "State of Uttar Pradesh Vs. Satish", AIR
2005 SC 1000, the Hon'ble Supreme Court has observed
"As regards delayed examination of certain witnesses, this
Court in several decisions has held that unless the
Investigating Officer is categorically asked as to why there
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was delay in examination of the witnesses, the defence
cannot gain any advantage therefrom. It cannot be laid
down as a rule of universal application that if there is any
delay in examination of particular witness the prosecution
version becomes suspect."
7. While dealing with an application for bail, there is
a need to indicate in the order, reasons for considering why
bail is being granted particularly when the appellant is
convicted in a serious offence, therefore, it is clear that an
order of bail cannot be granted in arbitrary or fanciful
manner.
8. The Act, 2012 has been enacted to strengthen the
legal provisions for the protection of children from sexual
abuses and exploitations. Child abuse has serious physical
and psycho-social consequences which adversely affect the
health and overall well-being of a child.
9. At the stage of considering the bail application, a
detailed examination of evidence and elaborate of the
documentation of the merit of the case has not to be
undertaken. The grant or denial is regulated, to a large
extent, by the facts and circumstances of each particular
case.
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10. In the present matter, the prosecution's
witnesses, including the victim, have supported the case of
the prosecution. At this stage, a detailed appreciation of
evidence shall affect the merits of the case. If a strong
prima facie ground is disclosed for substantial doubt about
the conviction, it may be ground to grant the bail. Such a
ground does not appear in the present case.
11. Therefore, without commenting on the merit of
the case, there is no good ground to release the appellant,
involved in this heinous crime, on bail. The bail application is
rejected accordingly.
12. It is clarified that the observations made regarding
the bail application are limited to the decision of this bail
application as to whether the bail application should be
allowed or not and the said observations shall not effect the
merit of this appeal.
____________________________
RAGHVENDRA SINGH CHAUHAN, C.J.
_______________________
ALOK KUMAR VERMA, J.
Dt: 20th July, 2021
JKJ/Neha
