20
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
.
Cr.M.P.(M) No. 1610 of 2018
Reserved on: 06.12.2018
Date of Decision: 18.12.2018
Sunil Dutt …Petitioner.
Versus
State of H.P. ..Respondent.
Coram:
The Hon’ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. Deepak Kaushal,
Advocate.
For the Respondent: Mr. Shiv Pal Manhans, Additional
Advocate General with M/s R.P. Singh
Raju Ram Rahi, Deputy Advocate
Generals.
ASI Padam Dev, Women
Police Station, Nahan, District Sirmour,
H.P., present in person alongwith record.
Vivek Singh Thakur, J.
Petitioner has preferred this petition under Section
439 of the Code of Criminal Procedure (hereinafter referred to as
‘CrPC’) for grant of bail in case FIR No. 3 of 2018, dated
19.05.2018, under Sections 376, 511, 201, 34, 177 of the Indian
Penal Code (hereinafter referred to as ‘IPC’), Section 4 of the
Protection of Children from Sexual Offences Act, 2012
1
Whether reporters of the local papers may be allowed to see the judgment?
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20
(hereinafter referred to as ‘POCSO Act’) and Section 3 (1) (w) (ii)
of Scheduled Castes Scheduled Tribes Act, registered at Police
Station Nahan, District Sirmaur, H.P.
.
2. For enlarging the petitioner on bail, it has been
canvassed that the petitioner has been implicated falsely in
present case without any allegation or evidence against him; he
has no role in commission of offence and there is change in
version of the statement of the complainant with regard to
manner in which alleged offence was committed. Further that
even if prosecution case is considered to be true, there is nothing
on record to infer that the petitioner has committed the alleged
offence and it is a case of no evidence against the petitioner and,
therefore, the rejection of bail by the learned Sessions Judge vide
order, dated 22.09.2018, is unwarranted, whereas, keeping in
view the entire facts and circumstances of the case, particularly,
the statement of prosecutrix, the petitioner deserves to be
enlarged on bail. It is also canvassed that role and conduct of the
present petitioner cannot be equated with co-accused Deepak
Singh, whose bail application has been rejected by this Court on
20.09.2018, dismissing Cr.M.P.(M) No.921 of 2018, titled as
Deepak Singh vs. State of H.P.
3. Before dealing with the case in hand, it is apt to refer
to the principles laid down and factors culled out by the apex
Court, required to be taken into consideration at the time of
consideration of bail applications by the Courts, which have also
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20
been referred in Cr.M.P.(M) No. 921 of 2018, however, same are
being reproduced in succeeding paras.
4. Main principles evolved in various pronouncements
.
of the apex Court are as under:
1. Grant of bail is general rule and
putting a person in jail or in a prison or incorrection home during trial is an exception and
presumption of innocence, i.e. person is believed
to be innocent until found guilty is fundamental
postulate of criminal jurisprudence. But, theseprinciples are not applicable in cases where there
is reverse onus and/or statutory presumption with
regard to commission of offence. Such cases are
r to be dealt with differently keeping in viewstatutory presumption and reverse onus provided
under the relevant statute. (See Dataram Singh
versus State of Uttar Pradesh and another, (2018)
3 SCC 22, para 1)
2. While making a general statement of
law that the accused is innocent, till proved guilty,the statutory provisions of relevant Act, like
Section 29 of the POCSO Act, have to be taken intoconsideration which provides for presumption as to
commission of any offence under Sections 3, 5, 7and 9 of the Act. (See State of Bihar versus
Rajballav Prasad alias Rajballav Prasad Yadav alias
Rajballabh Yadav, (2017) 2 SCC 178, para 22)
3. Each criminal case presents its own
peculiar factual scenario and, therefore, certain
grounds peculiar to a particular case may have to
be taken into account by the Court. The Court has
only to opine as to whether there is prima facie
case against the accused. The Court must not
undertake meticulous examination of the evidence19/12/2018 22:56:20 :::HCHP
20collected by the police and comment upon the
same. Such assessment of evidence and
premature comments are likely to deprive the
accused of a fair trial. (See Kanwar Singh Meena
versus State of Rajasthan and another, (2012) 12.
SCC 180)
4. A bail application is not to be
entertained on the basis of certain observations
made in a different context. There has to be
application of mind and appreciation of the factual
score and understanding of the pronouncementsin the field. (See Virupakshappa Gouda and
another versus State of Karnataka and another,
(2017) 5 SCC 406, para 14)
5. It has also to be kept in mind that for
the purpose of granting bail, the legislature has
used the words “reasonable grounds for believing”
instead of “the evidence” which means the court
dealing with the grant of bail can only satisfy itself
as to whether there is a genuine case against the
accused and that the prosecution will be able to
produce prima facie evidence in support of the
charge. It is not expected, at this stage, to have
the evidence establishing the guilt of the accused
beyond reasonable doubt. (See Virupakshappa
Gouda and another versus State of Karnataka and
another, (2017) 5 SCC 406, para 16; CBI versus
Vijay Sai Reddy, (2013) 7 SCC 452)
6. The Courts are not oblivious of the
fact that the liberty is a priceless treasure for a
human being. It is founded on the bedrock of the
constitutional right and accentuated further on
human rights principle. It is basically a natural
right. In fact, some regard it as the grammar of
life. No one would like to lose his liberty or barter
it for all the wealth of the world. People from
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20
centuries have fought for liberty, for absence of
liberty causes sense of emptiness. The sanctity of
liberty is the fulcrum of any civilised society. It is a
cardinal value on which the civilisation rests. It
cannot be allowed to be paralysed and
.
immobilised. Deprivation of liberty of a person
has enormous impact on his mind as well as body.
A democratic body polity which is wedded to rule
of law, anxiously guards liberty. But, a pregnant
and significant one, the liberty of an individual is
not absolute. [The] society by its collective
wisdom through process of law can withdraw the
liberty that it has sanctioned to an individual when
an individual becomes a danger to the collective
and to the societal order. Accent on individual
liberty cannot be pyramided to that extent which
would bring chaos and anarchy to a society. A
society expects responsibility and accountability
from its members, and it desires that the citizens
should obey the law, respecting it as a cherished
social norm. No individual can make an attempt to
create a concavity in the stem of social stream. It
is impermissible. Therefore, when an individual
behaves in a disharmonious manner ushering in
the disorderly things which the society
disapproves, the legal consequences are bound to
follow. At that stage, the court has a duty. It
cannot abandon its sacrosanct obligation and pass
an order at its own whim or caprice. It has to be
guided by the established parameters of law. (See
Neeru Yadav versus State of U.P., (2014) 6 SCC
508, para 16; Rakesh Ranjan Yadav versus CBI,
(2007) 1 SCC 70, para 16; Masroor versus State of
U.P., (2009) 14 SCC 286, para 15; Ash Mohammad
versus Shiv Raj Singh alias Lalla Babu and another,
(2012) 9 SCC 446, paras 10 25; Chandrakeshwar
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20
Prasad alias Chandu Babu versus State of Bihar
and another, (2016) 9 SCC 443 paras 10, 11)
7. Detailed examination of evidence and
elaborate documentation of merits of the case are
.
to be avoided. (See Puran versus Rambilas and
another, (2001) 6 SCC 338, para 8; Kalyan
Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC
528: (SCC pp. 535-36, para 11); Vinod Bhandari
versus State of Madhya Pradesh, (2016) 15 SCC
389, para 13; Lt. Col. Prasad Shrikant Purohit
versus State of Maharashtra, (2018) 11 SCC 458,
para 2.) Consideration of details of the evidence is
not a relevant consideration. While it is necessary
to consider the prima facie case, an exhaustive
exploration of the merits of the case should be
avoided by refraining from considering the merits
of material/evidence collected by the prosecution.
(See Anil Kumar Yadav versus State (NCT of Delhi)
and another, (2018) 12 SCC 129, para 15; and
Criminal Appeal No. 1175 of 2018, titled The State
of Orissa versus Mahimananda Mishra, decided on
18th September, 2018)
8. It is not necessary to go into the
correctness or otherwise of the allegations made
against the accused as this is a subject matter to
be dealt with by the trial Judge. (See Dataram
Singh versus State of Uttar Pradesh and another,
(2018) 3 SCC 22, para 16)
9. Where prima facie involvement of the
accused is apparent, material contradictions in the
charge sheet are required to be tested at the time
of trial and not at the time of consideration of
grant of bail. (See Lt. Col. Prasad Shrikant Purohit
versus State of Maharashtra, (2018) 11 SCC 458,
para 28)
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20
10. Probability or improbability of the prosecution
version has to be judged based on the material
available to the court at the time when bail is
considered and not on the basis of discrepancies.
.
(See Anil Kumar Yadav versus State (NCT of Delhi)
and another, (2018) 12 SCC 129, para 21)
11. The Court granting bail should exercise its
discretion in a judicious manner and not as a
matter of course and reasons for grant of bail in
cases involving serious offences should be given.
(See Kalyan Chandra Sarkar v. Rajesh Ranjan
(2004) 7 SCC 528: (SCC pp. 535-36, para 11);
Dipak Shubhashchandra Mehta versus Central
Bureau of Investigation and another, (2012) 4 SCC
134, para 32; Vinod Bhandari versus State of
Madhya Pradesh, (2016) 15 SCC 389, para13; Lt.
Col. Prasad Shrikant Purohit versus State of
Maharashtra, (2018) 11 SCC 458, para 29)
12. At the time of assigning reasons in order to
grant/refuse bail, there should not be discussion of
merits and demerits of the evidence. (See State
of Bihar versus Rajballav Prasad alias Rajballav
Prasad Yadav alias Rajballabh Yadav, (2017) 2 SCC
178, para 15)
13. Giving reasons is different from discussing
evidence/merits and demerits. (See Puran versus
Rambilas and another, (2001) 6 SCC 338, para 8;
State of Bihar versus Rajballav Prasad alias
Rajballav Prasad Yadav alias Rajballabh Yadav,
(2017) 2 SCC 178, para 15)
14. Under Section 439 CrPC, the Sessions Court and
the High Court has concurrent jurisdiction to grant
bail. Therefore, an application filed before the
High Court under Section 439 CPC, after rejection
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20
of an application filed before Sessions Court under
the said Section, is definitely a successive
application and is not a revision or appeal against
rejection of bail application by the Sessions Court.
.
15. An accused has a right to make successive
applications for grant of bail, the court
entertaining such subsequent bail applications has
a duty to consider the reasons and grounds on
which the earlier bail applications were rejected.
In such cases, the court also has a duty to record
the fresh grounds which persuade it to take a view
different from the one taken in the earlier
applications. (See Lt. Col. Prasad Shrikant Purohit
versus State of Maharashtra, (2018) 11 SCC 458,
para 30)
16. The period of incarceration by itself would not
entitle the accused to be enlarged on bail. (See
Anil Kumar Yadav versus State (NCT of Delhi) and
another, (2018) 12 SCC 129, para 24; Gobarbhai
Naranbhai Singala versus State of Gujarat (2008) 3
SCC 775, para 22 and Ram Govind Upadhyay
versus Sudarshan Singh, (2002) 3 SCC 598, para
9)
17. Filing of charge sheet establishes that after due
investigation the investigating agency, having
found materials, has placed the charge-sheet for
trial of the accused persons. (See Virupakshappa
Gouda and another versus State of Karnataka and
another, (2017) 5 SCC 406, para 12)
5. The relevant factors to be kept in mind at the time of
consideration of bail applications are as follows:
(1) Satisfaction of the Court in support of the charge
as to whether there is any prima facie or19/12/2018 22:56:20 :::HCHP
20reasonable ground to believe that the accused had
committed the offence;
(2) Nature and gravity of the accusation/ charge;
.
(3) Seriousness of the offence/crime and severity of
the punishment in the event of conviction;
(4) Nature and character of supportive evidence;
(5) Character, conduct, behaviour, means, position
and standing of the accused;
(6) The Courts must evaluate the entire available
material against the accused very carefully;
circumstances which are peculiar to the accused
and the Court must also clearly comprehend the
exact role of the accused in the case;
(7) The cases in which accused is implicated with the
help of sections 34 and 149 of the Indian Penal
Code, the court should consider with even greater
care and caution because over implication in the
cases is a matter of common knowledge and
concern;
(8) Position and status of accused with reference to
the victim and witnesses to assess the impact that
release of accused may make on the prosecution
witnesses and reasonable apprehension of the
witnesses being influenced or tampered with or
apprehension of threat to the complainant/
witnesses and possibility of obstructing the course
of justice;
(9) The antecedents of the applicant including the fact
as to whether the accused has previously
undergone imprisonment on conviction by a Court
in respect of any cognizable offence;
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(10) likelihood and possibility of the accused’s
likelihood to repeat similar or the other offences;
(11) A reasonable possibility of the presence of the
accused not being secured at the trial and danger
.
of the accused absconding or fleeing from justice;
(12) Impact of grant of bail on the society and danger,
of course, of justice being thwarted by grant of
bail affecting the larger interest of the public or
the State;
(13) While considering the prayer for grant of
anticipatory bail, a balance has to be struck
between two factors namely, no prejudice should
be caused to the free, fair and full investigation
and there should be prevention of harassment,
humiliation and unjustified detention of the
accused;
(14) Impact of grant of anticipatory bail particularly in
cases of large magnitude affecting a very large
number of people;
(15) Whether the accusations have been made only
with the object of injuring or humiliating the
applicant by arresting him or her;
(16) Frivolity in 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 an order of bail;
(17) No doubt, this list is not exhaustive. There are no
hard and fast rules regarding grant or refusal of
bail, each case has to be considered on its own
merits. The matter always calls for judicious
exercise of discretion by the Court.
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(See – Gurcharan Singh v. State (Delhi
Admn.) (1978) 1 SCC 118; Gurbaksh Singh Sibbia
versus State of Punjab, (1980) 2 SCC 565; Prahlad
Singh Bhati v. State (NCT of Delhi) (2001) 4 SCC
.
280; Puran v. Rambilas (2001) 6 SCC 338; Ram
Govind Upadhyay v. Sudarshan Singh (2002) 3
SCC 598; Chaman Lal versus State of U.P. and
another, (2004) 7 SCC 525; Kalyan Chandra Sarkar
v. Rajesh Ranjan (2004) 7 SCC 528, para 11);
Jayendra Saraswathi Swamigal v. State of T.N.,
(2005) 2 SCC 13, para 16); State of U.P. v.
Amarmani Tripathi, (2005) 8 SCC 21, para 18;
Prashanta Kumar Sarkar versus Ashis Chatterjee
and another, (2010) 14 SCC 496; Siddharam
r Satlingappa Mhetre versus State of Maharashtra
and others, (2011) 1 SCC 694; Prakash Kadam
versus Ramprasad Vishwanath Gupta, (2011) 6
SCC 189; Kanwar Singh Meena versus State of
Rajasthan and another, (2012) 12 SCC 180; Anil
Kumar Yadav versus State (NCT of Delhi) and
another, (2018) 12 SCC 129; Criminal Appeal No.
1175 of 2018, titled The State of Orissa versus
Mahimananda Mishra, decided on 18th September,
2018)
6. In present case, FIR against the petitioner has been
registered under Section 4 of POCSO Act. In Section 4 of POCSO
Act, punishment for commission of offence under Section 3 of the
said Act has been provided and with respect to commission of
offence under Section 3, a presumption of guilt has been
provided under Section 29 of the said Act, which reads as under:
“29. Presumption as to certain offences. – Where a
person is prosecuted for committing or abetting or
attempting to commit any offence under sections 3,19/12/2018 22:56:20 :::HCHP
205, 7 and section 9 of this Act, the Special Court
shall presume, that such person has committed or
abetted or attempted to commit the offence, as the
case may be unless the contrary is proved.”
.
7. Perusal of the status report filed and record produced
by the prosecution reveals that prosecutrix has approached the
Police Post Kachaa Tank, Nahan in the midnight between 18-
19.05.2018, barefoot, without panty and salwar, but, wearing
shirt only and covering her lower body with dupatta (chunni) and
narrated that after taking her examination at Paonta Sahib,
before returning to Nahan, where she was residing in the house
of a retired Principal as maid, her friend Sunil met her, who took
her with one another boy on a bike and violated her person and
was asking her to spent the whole night with him, but, on her
refusal, he retained her salwar and bag and did not return the
same despite repeated requests, compelling her to left the place
without salwar covering her lower body with dupatta (chunni)
and to start for Nahan on foot and she also signalled to stop the
vehicles, but, no one stopped except a private bus in which she
came to Kachaa Tank Police Chowki, Nahan.
8. As per prosecution case, she was provided clothes by
the police and was taken to Women Police Station, Nahan, where
FIR was registered on 19.05.2018, whereafter, she was taken to
the Magistrate on 20.05.2018 and her statement under Section
164 CrPC was recorded wherein she further disclosed that she
accompanied Sunil and another boy Ghodu on the bike and
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20
boarded the truck alongwith them where a third boy, namely
Aman Sharma @ Ojas was also present and in the presence of
Ghoru and Aman Sharma @ Ojas, Sunil had violated her and
.
thereafter went out from the cabin of the truck wearing his own
chappal in one foot and that of prosecutrix in the another and did
not return back to the cabin and did not respond to the call of
driver of the truck and the first call was not attended by him and
thereafter his phone was found to be switched off and thereafter,
the two boys, i.e. Ghoru (second boy) and Aman Sharma @ Ojas
(third boy) had also tried to violate her forcibly, who had also
taken her panty and salwar to compel her to submit herself to
their lust forcibly. However, with great difficulty, she jumped
from the truck to save her, but, accused persons kept her clothes
with them causing her to come to Nahan after covering her lower
body with her dupatta, in a private bus and to approach Police
Post Kachaa Tank at Nahan, where police had provided clothes to
her and at that time, she was perplexed and under duress
causing disclosure of place of occurrence as a forest near
Shambhuwala whereas the occurrence had taken place in the
truck.
9. As per copy of report No.24, dated 19.05.2018,
produced with record, recorded in Police Post, Kachha Tank,
Nahan, at the instance of H.C. Praveen Angiras No.520, at the
time of his departure from Police Post, Kachaa Tank, Nahan, to
Women Police Station, Nahan, alongwith prosecutrix, the
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prosecutrix was brought to the Police Post, Kachaa Tank, by one
Baldev Singh, who was travelling to Shimla in the private bus, in
which the prosecutrix after taking lift came to Nahan. It is stated
.
in this report that the said Baldev Singh had informed the police
that on noticing the condition of the prosecutrix suspecting some
thing wrong, he had asked prosecutrix about the reason for that
condition whereupon she had disclosed that she was going to
Nahan from Paonta Sahib alongwith her friend Sunil Kumar in a
truck and on the way Sunil had de-boarded the truck and had not
returned back and had also switched off his phone. Thereafter,
truck driver and another person had started vulgar acts with her.
Thereupon, she had jumped from the truck and it is further
stated by Baldev Singh that for her safety he had brought her to
the Police Chowk. After handing over the girl to the police, the
said Baldev Singh, had left for Shimla. This document also
indicates that travelling in the truck alongwith Sunil and other
two co-accused had been disclosed by the prosecutrix at the first
instance in the bus. Though it is a matter of fact that she had
not stated so, in the first complaint lodged by her with the police
on 19.05.2018, but as noticed supra, immediately thereafter, on
20.05.2018, she had disclosed entire story before the Magistrate.
10. Immediately after the incident, prosecutrix had
approached the police whereupon FIR was registered on
19.05.2018, and soon thereafter, on 20.05.2018, statements of
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prosecutrix, under Sections 164 CrPC and 161 CrPC, were
recorded.
11. In the meantime police had also obtained CDR of
.
telephone number of accused-Sunil supplied by the prosecutrix
and on the basis of call details, two persons, namely Sachin and
Aman @ Ojas were called by police for investigation where Aman
@ Ojas has disclosed the incident in the same manner as has
been disclosed by the prosecutrix in her statement recorded
under Section 164 CrPC and also disclosed the registration
number of the truck involved in the incident and name of its
driver (second boy – Ghoru) as Deepak Singh, and Sachin, who
has also been cited as a witness in the challan, a driver of
another truck, has stated that on that day and at the time of
incident, he was also going towards Khanna whereto petitioner-
Deepak Singh had loaded his truck and on noticing petitioner –
Deepak Singh, he had tried to contact the petitioner by signalling
and calling him to stop. But, petitioner-Deepak Singh had not
stopped the truck. From his statement, the version of the
prosecution is, prima facie, corroborated.
12. As per birth certificate of prosecutrix on record, her
date of birth is 25.10.2001 and at the time of incident, she was
16½ years old. As evident from her statement, she accompanied
Sunil and petitioner at her own, but, keeping in view the
evidence on record with regard to her age, prima facie, it
appears that her consent was immaterial. So far as the alleged
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role of the petitioner is concerned, he has not only violated the
person of minor prosecutrix, but also with an intention to
facilitate violation on her person by co-accused, had taken away
.
her one chappal so as to ensure that she could not de-board the
truck for want of availability of her chappals, so as to compel her
to allow her violation by co-accused also. So far as, taking away
one chappal from the pair of footwear of prosecutrix and not
responding to telephonic call and thereafter switching off the
mobile phone is concerned, is also having same gravity like
keeping lower apparels, including panty of prosecutrix by the co-
accused for pressurizing her to submit herself to them acceeding
to their demand. Prosecutrix had accompanied Sunil Kumar,
being a friend having faith upon him, who also happened to be a
relative of her neighbour. He had not only violated her, but also
thrown her in the hands of unknown males without lower
apparels, inner wear and footwear, during the dark night. As per
material on record, during investigation pair of sandals/chappals
of prosecutrix was also recovered from the truck in which the
alleged offence was committed which indicates that Sunil was
also in the truck throughout, may not be present in the cabin of
the truck, but body of the truck, as the pair of footwear of
prosecutrix has been recovered from the truck.
13. Prosecutrix, aged about sixteen years, barefoot
without her lower apparels, was left alone on the Highway by the
petitioner and his companions during dark night hours. Facing
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such a situation, the trauma suffered by the prosecutrix was
more than sufficient to get perplexed to tell half truth to the
police, at the first instance, as it was a case where she herself
.
had opted to accompany her friend Sunil, without realizing the
consequences thereof likely to be followed on account of the
mind set of persons accompanied by her who considered her,
being a female, an item for enjoyment and nothing more than
that. Such mind set of petitioner and his co-accused, prima
facie, is reflecting from their behaviour and manner in which they
abandoned the prosecutrix on her refusal to accede to their
demand of sexual favour perhaps thinking that in such
circumstance, prosecutrix may not dare to report the matter. It is
also recorded in Nakal Rapat No.24, dated 19.05.2018, referred
supra, recorded in Police Post, Kachaa Tank, Nahan, that after
receiving a telephonic call of prosecutrix through the mobile
phone of Baldev Singh from bus, petitioner-accused had asked
said Baldev Singh to bring that girl at Dosarka, Nahan. It is a fact
that the said person had brought her to the Police Post, Kachaa
Tank, Nahan by avoiding the request of petitioner.
14. Nothing has been brought to the notice of the Court
from the material on record or otherwise causing the prosecutrix
to implicate the petitioner falsely in the present case. As noticed
supra, keeping in view the age of the prosecutrix and the
provisions of POCSO Act, consent of prosecutrix to accompany
the petitioner is immaterial, even otherwise, such consent to
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20
company does not mean to consent to violate her and even it is
considered that she permitted the petitioner to violate her with
her consent, it cannot be construed that she will be available for
.
all that too by compelling her by taking away her footwear and
withholding her salwar and panty. Role, act and conduct of the
petitioner is not less grievous than the co-accused Deepak Singh,
rather petitioner appears to be main accused having designed
the entire episode.
15. Plea of the learned counsel for the petitioner, that
there is no allegation against the petitioner and it is a case of no
evidence against him, is not in consonance with the material on
record. Veracity of the statements and impact of disclosure of
half truth by the prosecutrix, at the first instance, and revelation
of the entire story before the Magistrate is yet to be considered
by the trial Judge. However, prima facie, there is evidence on
record connecting the petitioner with the alleged offence under
Section 376 IPC and Section 4 of POCSO Act read with Section 34
IPC so as to facilitate the commission thereof and also with
regard to an attempt on his part to commit the same offence.
16. It is true that pre-trial imprisonment cannot be used
as substitute to the punishment without scrutiny of the evidence
by the trial Court, but, at the same time, in a case where a girl
was abandoned in a situation, as discussed above, grant of bail
to the petitioner, at this stage, may also have an adverse impact
on the society. Petitioner has a right to liberty under Article 21 of
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20
the Constitution of India, but, the provision of reverse onus under
Section 29 of the POCSO Act has also to be given due weightage.
Balance has to be maintained between the personal and societal
.
interest.
17. Further, challan is pending for consideration of
charge before the trial Court and is stated to be listed on
27.12.2018 for consideration of charge. Petitioner had also
approached learned Sessions Judge for bail by way of application
under Section 439 CrPC on 17.08.2018, which was dismissed on
22.09.2018 and thereafter, present petition has been filed on
25th July, 2018. Learned Sessions Judge has considered the
entire material on record and has declined to release the
petitioner on bail by passing a reasoned order. I find no infirmity
or perversity in the order passed by him. From the date of
rejection of the bail of the petitioner by learned Sessions Judge
till date, there is no change in circumstances and no fresh ground
persuading this Court to take a view different from the view
taken by the learned Sessions Judge has been pointed out.
18. In view of above, considering cumulative effect of
entire facts and circumstances, without commenting upon the
merits of the evidence and keeping in view the principles laid
down by the apex Court and other factors, like nature of offence,
manner in which it has been committed and its impact on the
society, petitioner is not entitled for bail, at this stage. Hence,
the petition is dismissed.
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20
19. It is made clear that any observation made herein
above shall not be taken as an expression of opinion on the
merits of the case but is confined only for deciding the present
.
petition and the trial Court shall decide the matter uninfluenced
by any observation made herein above.
(Vivek Singh Thakur)
Judge.
December 18, 2018
(Purohit)
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