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Sunil Dutt vs State Of H.P on 18 December, 2018

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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(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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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 in

correction 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, these

principles 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 view

statutory 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 into

consideration which provides for presumption as to
commission of any offence under Sections 3, 5, 7

and 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 evidence

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collected 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 pronouncements

in 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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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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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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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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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 or

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reasonable 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,

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5, 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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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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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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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.

19/12/2018 22:56:20 :::HCHP
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)

19/12/2018 22:56:20 :::HCHP

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