Allowed

Rajender Kumar v. State of Hp

Himachal Pradesh HC7 Mar 2024CRMPM/45/2024

Case brief

AI extract

What is this about?

Regular bail application under Sections 376 D/458/34 IPC and Section 6 POCSO Act. Material witnesses did not support the prosecution and the co-accused was already released on bail. The Court granted bail on the principle of parity with conditions.

What did the court decide?

Petitioner enlarged on bail on furnishing bail bonds of ₹50,000 with one surety, subject to conditions including attending trial, not influencing witnesses, and notifying address changes.

Rajender Kumar Vs State of Hp — Child Sexual Offences (POCSO) | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.MPM No. 45 of 2024 Reserved on: 29.02.2024 Date of Decision: 07^th March, 2024.

Rajender Kumar

....Petitioner

Versus

State of Himachal Pradesh

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....Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No

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For the Petitioner : Mr. Jagmohan Chandel, Advocate. For the Respondent : Mr. Jitender Sharma, Additional Advocate General.

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Rakesh Kainthla,Judge

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The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 376 D and 458 read with Section 34 of Indian Penal Code (IPC) and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act) in case F.I.R. No. 26 of 2023 dated 08.05.2023, at Police Station Kupvi, District Shimla. The petitioner earlier filed a

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bail petition, which was dismissed by this Court. Now the

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Whether reporters of the local papers may be allowed to see the judgment? Yes

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evidence has been recorded. The victim, her father, grandmother, sister, brother and neighbour did not support the prosecution case. Another co-accused has been released. The accused is entitled to bail on the principle of parity. The prosecution is to examine the official witnesses and the petitioner cannot influence them. The petitioner is the sole bread earner of the family and his wife is dependent upon him. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.

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The petition is opposed by filing a status report asserting that the victim told her mother that two unknown persons had entered the house and damaged the bulbs. The victim’s mother informed the police, who went to the spot. The victim’s father made a statement that he received information from his mother that some unknown person had entered the room. The victim also revealed on enquiry that they had done a wrong act with her. She could identify one person named Akshay but not the other. The police conducted the investigation. As per the DNA report, the DNA taken from the shirt of the victim matched with the DNA taken from the blood of the petitioner. Two male DNA profiles were identified in the underwear/undergarments of the victim. The first matched with

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the DNA taken from the blood of the petitioner and the other with

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the DNA taken from the blood of Akshay. The investigation was completed and the challan was prepared and presented before the Court.

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I have heard Mr. Jagmohan Chandel, learned counsel

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for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State.

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Mr Jagmohan Chanel, learned counsel for the petitioner submitted that there is a change in the circumstances. The statements of material witnesses have been recorded before the learned Trial Court and they have not supported the prosecution’s case. The other accused has been released on bail and the petitioner is entitled to bail on the principle of parity. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr. Jitender Sharma, learned Additional Advocate General submitted that the prosecution has yet to lead evidence and releasing the petitioner on bail would affect the trial; therefore, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions at the bar and have gone through the records carefully.

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7. The Hon’ble Supreme Court discussed the parameters

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for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC

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OnLine SC 1059 as under:-

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12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

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(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

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(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

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(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

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(d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

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13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu

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Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:

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“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

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( a ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

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(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124] .)”

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A similar view was taken in State of Haryana vs

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Dharamraj 2023 SCC Online 1085, wherein it was observed:

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7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan

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Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus:

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‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

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(ii) nature and gravity of the accusation;

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(iii) severity of the punishment in the event of conviction;

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(iv) danger of the accused absconding or fleeing, if released on bail;

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(v) character, behaviour, means, position and standing of the accused;

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(vi) likelihood of the offence being repeated;

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(vii) reasonable apprehension of the witnesses being influenced; and

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(viii) danger, of course, of justice being thwarted by grant of bail.’

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The present case has to be decided as per the

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parameters laid down by the Hon’ble Supreme Court.

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Learned counsel for the petitioner has placed on record

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the statements of the victim, her father, grandmother, sister, and neighbour. They all have not supported the prosecution case. A copy of the order passed by the Co-ordinate Bench of this Court in Cr.MP(M) No. 2573 of 2023, titled Akshay Kumar vs State of H.P., decided on 10^th November 2023 has also been filed, which shows that the co-accused was released on bail. Therefore, the petitioner is entitled to bail on the principle of parity.

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In view of the above, thepresent petition is allowed and the bail petitioner is ordered to be enlarged on bail, subject to his furnishing bail bonds in the sum of ₹ 50,000/- with one surety in the like amount, to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following conditions:

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(i) The petitioner will attend the trial on each date of hearing and if he is unable to do so, he will seek an exemption from the court by filing an appropriate application,

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(ii) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever,

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(iii) The petitioner shall not seek unnecessary adjournments and do any other act to hamper the progress of the trial.

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(iv) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the SHO of the concerned Police Stationand the Court.

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(v) The petitioner will furnish his mobile number, and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

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It is clarified that if the petitioner misuses the liberty

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or violates any of the conditions imposed upon him, the investigating agency shall be free to move the Court for cancellation of the bail.

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The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the merits of the case.The petition stands accordingly disposed of.

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A downloaded copy of this order shall be accepted by the learned trial Court while accepting the bail bonds from the petitioner and in case, said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, the same may be ascertained from the official website of this Court.

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(Rakesh Kainthla) Judge

Rajender Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

Rajender Kumar v. State of Hp

Case brief

What is this about?

What did the court decide?

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