Himachal Pradesh High Court
Govind Kami vs State Of Himachal Pradesh on 25 May, 2023
Author: Satyen Vaidya
Bench: Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 354 of 2023
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Decided on : 25.05.2023
Govind Kami ....Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram
The Hon'ble Mr. Justice Satyen Vaidya, Judge.
Whether approved for reporting? 1
For the petitioner : Mr. Surinder Saklani, Advocate.
For the respondent : Mr. B.N. Sharma, Additional
Advocate General.
Satyen Vaidya, Judge (Oral)
Petitioner has prayed for grant of bail under Section 439 of the Code of Criminal Procedure, in case FIR No. 79 of 2021, dated 23.08.2021, registered under Sections 363, 376 of the Indian Penal Code and Section 6 of the Protection of Children from Sexual Offence (for short "POCSO Act"), at Police Station Rajgarh, District Sirmour, H.P. 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 25/05/2023 20:32:50 :::CIS 22. The allegations against petitioner are that he committed rape on the victim child who was .
about fourteen years of age. The case was registered on the complaint of the father of child victim alleging inter alia that on the night of 22.08.2021 the child victim left the house without informing any one. It was suspected that the petitioner had
3.
r to enticed and kidnapped the child victim.
On investigation, the child victim was recovered from district Kinnaur from the custody of petitioner.
4. Petitioner is under trial. The statement of child victim has already been recorded.
5. Learned counsel for the petitioner has contended that the child victim has already been examined and the version given by her in her deposition is at variance from her statement under Section 164 of Cr. P.C. It is also submitted that the child victim was a consenting party. The trial of the case is likely to take considerable time before conclusion. It is also submitted that petitioner will ::: Downloaded on - 25/05/2023 20:32:50 :::CIS 3 abide by all the terms and conditions as may be imposed against him.
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6. On the other hand, learned Additional Advocate General, has opposed the prayer for bail on the ground that the petitioner is accused of a very heinous crime. He does not have any permanent abode. In case of his release on bail he r influenceto may abscond from the course of justice and may also try to the material prosecution witnesses.
7. I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also gone through the status report.
8. The child victim has already rendered her deposition before learned Special Judge. I have gone through the contents of her statement. She has fully supported the prosecution case. It is revealed from her testimony that the date of birth of child victim is 16.07.2007. The date of alleged offence is 24.08.2021. Hence, petitioner was about ::: Downloaded on - 25/05/2023 20:32:50 :::CIS 4 fourteen years of age at the time of commission of offence.
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9. Inhuman acts of committing sexual assault against children (minors), has attracted the attention of all stake-holders including the legislators and, therefore, the provisions relating to sexual assaults on minors have been made very enactment of r a to stringent in the Indian Penal Code, besides the special Act known as "The Protection of Children from Sexual Offence Act".
The laudable purpose of such legislations is to protect the children from offence of sexual assault, sexual harassment and pornography etc. The reason behind enactment of such legislation was the data collected by the National Crimes Records Bureau with respect to ever increasing cases of sexual offence against children.
10. The facts of the case disclose the nature, gravity and seriousness of accusations. The offence as alleged against petitioner, if proved, will attract severe punishments as prescribed under Section ::: Downloaded on - 25/05/2023 20:32:50 :::CIS 5 376 IPC as also Section 6 of the POCSO Act. The victim belongs to a poor family and in case of .
release of petitioner on bail, the possibility of petitioner trying to influence the material witnesses cannot be ruled out. As noticed earlier, this Court is prima-facie of the view that the implication of petitioner in the case is not without justification.
11. The contention raised on behalf of the petitioner that child victim was a consenting party also cannot help because of petitioner, keeping in view the tender age of child victim.
12. In X (Minor) Vs. The State of Jharkhand and Anr. (2022) LiveLaw (SC) 194, Hon'ble Supreme Court has held as under:-
"6. The High Court was manifestly in error in allowing the application for bail. The reason that from the statement under Section 164 and the averments in the FIR, it appears that "there was a love affair" between the appellant and the second respondent and that the case was instituted on the refusal of the second respondent to marry the appellant, is specious. Once, prima facie, it appears from the material before the Court that the appellant was barely thirteen ::: Downloaded on - 25/05/2023 20:32:50 :::CIS 6 years of age on the date when the alleged offence took place, both the grounds, namely that "there was a love affair" between the appellant .
and the second respondent as well as the alleged refusal to marry, are circumstances which will have no bearing on the grant of bail. Having regard to the age of the prosecutrix and the nature and gravity of the crime, no case for the grant of bail was established. The order of the High Court granting bail has to be interfered with since the circumstances which prevailed with the High Court are 3 extraneous in view of the age of the prosecutrix, having regard to the provisions of r Section 376 of IPC and Section 6 of POCSO."
13. In view of above discussion, petitioner is not entitled to bail, hence, the petition is dismissed.
14. Any expression of opinion herein-above shall have no bearing on the merits of the case and shall be deemed only for the purpose of disposal of this petition.
(Satyen Vaidya)
25th May, 2023 Judge
(sushma)
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