Sanju Vs State of Hp

Neutral Citation No. ( 2024:HHC:3459 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 551 of 2024 Reserved on: 31.05.2024 Date of Decision: 14^th .06.2024

Sanju Versus			... Petitioner
State of Himachal Pradesh			....Respondent
Coram
*Hon’ble Mr Justice Rakesh Kainthl* *Whether approved for reporting?*¹	a,*Jud* No	*ge.*
For the Petitioner :	Mr. Adv	Udit ocate.	Shaurya Kaushik,
For the Respondent/State :	Mr. Addi	Lo tional	kender Kutlehria, 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 as per the prosecution story, the petitioner was found in his room with the victim aged about 1 year 4 months. It was presumed that the petitioner had committed sexual assault on the vicitm. An F.I.R. No. 3 of 2022 dated 09.04.2022 was registered at Women Police Station Nahan, District, Sirmour, H.P. for the commission of an offence punishable under Section 376 of the Indian Penal Code ( in short IPC ) and Section 6 of the Protection of Children from Sexual Offences Act 2012 ( in short POCSO Act ). The minor had

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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sustained injuries due to a fall from a box onto wooden planks. The prosecution’s witnesses have not supported its case. The petitioner filed a petition for quashing the F.I.R. on 26.06.2022. A stay was granted by the Court on 06.07.2023. It was vacated on 01.09.2023. The petitioner has been in custody since 09.04.2022. Eleven (11) witnesses out of 26 (twenty-six) have been examined. Six (6) witnesses out of the Eleven (11) witnesses have been declared hostile as they have not supported the prosecution case. The petitioner belongs to a respectable family. He would abide by all the terms and conditions, which may be imposed by the Court. Hence, 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’s mother made a complaint to the police that the petitioner took the victim to his room. The victim was crying. It was found that the accused was lying on the bed. The clothes of the victim and the accused were bloodstained. The victim was taken to the hospital where she was examined. The police conducted the investigation and arrested the petitioner. The victim was aged 1 year and 4 months on the date of the incident. As per the report of the analysis, the DNA

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profile obtained from the blood sample of the victim matched with the DNA profile obtained from the underwear, shirt and pants of the accused and the mattress. The Challan has been prepared and presented before the Court. The petitioner has committed a heinous offence. The matter is now listed for recording the remaining prosecution witnesses.

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I have heard Mr. Udit Shaurya Kaushik, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent-State.

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Mr. Udit Shaurya Kaushik, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated based on the suspicion. The witnesses have not supported the prosecution case. There is sufficient material to connect the petitioner with the commission of a crime. There is a delay in concluding the trial. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr. Lokender Kutlehria, learned Additional Advocate General submitted that the petitioner is involved in the commission of a heinous offence and he should not be released on bail. Hence, 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 record carefully.

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The Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC 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 Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration

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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 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

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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 a grant

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of bail.

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The present case has to be decided as per the parameters

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laid down by the Hon’ble Supreme Court.

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Learned counsel for the petitioner relied upon the statements of the witnesses recorded by the learned Trial Court. It is not permissible for this Court to go through the evidence recorded

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before the learned Trial Court and to appreciate the statements of witnesses during the bail proceedings. Further, as per the petition and

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the status report, all the witnesses have not yet been examined and

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merely because some of the witnesses have not supported the prosecution version is not sufficient to grant bail to the petitioner. The report of the analysis shows that the DNA taken from the blood of the victim and the underwear, pants and shirt of the petitioner matched the DNA of the victim. The private parts of the victim were bleeding and she was admitted to the hospital for her treatment. The petitioner was found to have absconded and he was recovered/arrested from the Jungle near the place of the incident. These circumstances prima facie show the involvement of the petitioner in the commission of a crime. Considering the age of the victim and the fact that the petitioner is related to her, the petitioner cannot be released on bail.

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Learned counsel for the petitioner further submitted that there is a delay in the progress of the trial. This is not acceptable. The petitioner himself asserted in para 4 of the petition that he had filed a petition for quashing of the F.I.R. and the stay was granted on 06.07.2023, which was vacated on 01.09.2023. It means that the proceedings could not be continued due to the stay obtained by the petitioner. Since the petitioner had obtained the stay order, he cannot claim that there was a delay in the progress of the Trial.

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12 In view of the above, the present petition fails and the same stands dismissed.

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