BA1/158/2020
2021 Latest Caselaw 1618 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA



         FIRST BAIL APPLICATION NO. 158 of 2020



                      6TH MAY, 2021


Between:

Jeevan Bisht.                                  ...Applicant


and


State of Uttarakhand.                          ...Respondent


Counsel for the Applicant   :   Mr. R.S. Sammal.



Counsel for the Respondent :    Mr. Rohit Dhyani, learned
                                Brief Holder for the State.


Hon'ble Alok Kumar Verma,J.

This bail application has been filed under Section 439 of the Code of Criminal Procedure, 1973 (hereinafter referred to as, "the Code") for grant of regular bail in connection with FIR No.23 of 2019, registered with Police Station Sitarganj, District Udham Singh Nagar for the offence under Section 376 of the Indian Penal Code and Section 5/6 of the Protection of Children from Sexual Offences Act, 2012.

2. Facts, to the limited extent necessary, are that the victim, aged about 5 years, was studying in Class LKG at New Vision Public School. The victim was taking tuition from the present applicant, Principal of the school, since

09.01.2019 at his house. On 18.01.2019, the victim returned home at about 4 p.m. The Informant, mother of the victim, found her scared and she was unable to walk properly. The informant inquired from the victim. The victim informed her that after sending the other students, the applicant, tutor, took her to another room where he undressed her and touched her private part and committed misdeeds on her. The informant found that her private part was bleeding. The FIR was lodged by the mother of the victim at 05.20 p.m. on 19.01.2019. The medical examination of the victim was conducted at 10.15 p.m. on 19.01.2019. During the course of the investigation, statements of the victim and other witnesses were recorded. The statement of the victim was also recorded under Section 164 of the Code. After completion of the investigation, charge-sheet has been filed.

3. Heard Mr. R.S. Sammal, the learned counsel for the applicant and Mr. Rohit Dhyani, the learned Brief Holder for the State through video conferencing.

4. Mr. R.S. Sammal, the learned counsel for the applicant, submitted that the FIR was lodged on 19.01.2019 at 05.20 p.m., but no explanation has been given for the delay in lodging the report; medical report does not support the case of the prosecution; the applicant is an innocent person; he has been implicated only on account of the rivalry between the parties; he is only the bread earner of his family, he has no criminal history; he is in custody since 20.01.2019.

5. On the other hand, Mr. Rohit Dhyani, the learned Brief Holder appearing for the State, opposed the bail application and submitted that the victim has supported the prosecution story in her statements under Sections 161 and 164 of the Code; the victim's medical

report supports the case of the prosecution; according to the present case, the applicant inserted his finger into anus of the victim; redness over perianal region of anus was found in the medical examination of the victim; opinion is given by the doctor that sexual abuse cannot be ruled out; after investigation, charge sheet has been filed and four prosecution witnesses, including the victim, have been examined; these witnesses have supported the case of the prosecution.

6. Section 439 of the Code confers very wide powers regarding bail. But, while granting bail, the High Court is guided by the same considerations as other court. That is to say, the gravity of the crime, the character of the evidence and such other grounds are required to be taken into consideration.

7. In the case of State of U.P. vs. Amarmani Tripathi, (2005) 8 SCC 21, the Hon'ble Apex Court has held that it is well settled that the matters to be considered in an application for bail, are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence, (ii) nature and gravity of charge, (iii) severity of the punishment in the event of conviction, (iv) danger of the accused absconding or fleeing, if released on bail, (v) character, behavior, means, position and standing of the accused, (vi) likelihood of the offence being repeated, (vii) reasonable apprehension of the witnesses being tampered with, and (viii) danger, of course, of justice being thwarted by grant of bail.

8. In determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. 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 where an accused is charged of having committed a serious offence. Any order dehors reasons suffers from non-application of mind as observed by the Hon'ble Supreme Court in the case of Ram Govind Upadhyay vs. Sudarshan Singh and others, (2002) 3 SCC 598.

9. Whether the delay in lodging the F.I.R. is so long as throw a cloud of suspicion on the seeds of the prosecution case, must depend upon a variety of factors which would vary from case to case. In some cases, delay may be inevitable such as, cases involving the offences against the chastity, modesty, honour etc. of a minor girl, in which case, her family members usually take some time to decide whether or not the matter should be reported to the police.

10. In State of Himachal Pradesh vs. Prem Singh, AIR 2009 SC 1010, the Hon'ble Supreme Court observed, "So far as the delay in lodging the F.I.R. is concerned, the delay in a case of sexual assault, cannot be equated with the case involving other offences. There are several factors which weigh in the mind of the prosecutrix and her family members before coming to the police station to lodge a complaint. In a tradition bound society prevalent in India, more particularly, rural areas, it would be quite unsafe to throw out the prosecution case merely on the ground that there is some delay in lodging the F.I.R."

11. A ratio decidendi of the judgment of the Hon'ble Supreme Court in Anil Kumar Yadav vs. State (N.C.T.)

of Delhi and another, 2018 (1) CCSC 117 is that in serious crimes, the mere fact that the accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail.

12. The Protection of Children from Sexual Offences 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. Penetrative sexual assault is most heinous offence causing enormous emotional and physical harm that can lost throughout child victim's life time.

13. At the stage of considering the bail application, a detailed examination of evidence and elaborate 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.

14. From the perusal of the evidence, collected during investigation, and the statement of the victim recorded under Section 164 of the Code, it prima facie appears that the applicant, tutor of the victim, was involved in this crime. No reason is found to implicate him. Therefore, without commenting on the merit of the case, there is no good ground to release the applicant-accused, involved in this heinous crime, on bail. The bail application is rejected accordingly.

15. It is clarified that the observations made regarding the bail application are limited to the decision, in

the light of the facts, provided by the parties at this stage, as to whether the bail application should be allowed or not. The said observations shall not effect the trial of the case.

___________________ ALOK KUMAR VERMA, J.

Dt: 6th May, 2021 JKJ/Neha