Himachal Pradesh High Court
Rohit Kumar vs State Of Himachal Pradesh on 9 January, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 2271 of 2023 .
Reserved on: 8.12.2023 Date of Decision: 09.01.2024.
Rohit Kumar ...Petitioner
of
Versus
State of Himachal Pradesh
rt ...Respondent
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr. Sativ Chauhan, Advocate.
For the Respondent : Mr. Jitender Sharma, Additional Advocate General.
Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that FIR No. 71 of 2023, dated 13.4.2023 was registered against the petitioner for the commission of offences punishable under Sections 363, 366 and 376 of IPC and Section 4 of the Protection of Children from Sexual Offences (POCSO) Act. The FIR was lodged on false facts.
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 09/01/2024 20:36:14 :::CIS 2The petitioner is entitled to bail even if the allegations are serious. The liberty cannot be curtailed on mere allegations. The .
petitioner has roots in the society and no useful purpose would be served by detaining him in custody. The petitioner would abide by all the terms and conditions, which may be imposed by the Court. Therefore, it was prayed that the present petition be of allowed and the petitioner be released on bail.
2. rt The police filed a status report asserting that the victim was told by the petitioner that he wanted to marry her.
She told the petitioner that he was already married and she could not marry him. The petitioner took her on the night of 11.4.2023 from her home and he maintained sexual relations with the victim without her consent. He asked the victim to go to the house of her maternal grandmother. The victim revealed the incident to her parents. The matter was reported to the police.
The police conducted the investigation and arrested the petitioner on 14.4.2023. The date of birth of the victim was found to be 1.1.2006 and the victim was aged 17 years and 03 months and 12 days on the date of the incident. The challan was prepared and presented before the Court on 3.6.2023. As per the report of DNA analysis, the DNA obtained from the undergarments of the ::: Downloaded on - 09/01/2024 20:36:14 :::CIS 3 petitioner matched with the DNA obtained from a blood sample of the victim. The matter was listed for prosecution evidence on .
7.12.2023.
3. I have heard Mr. Sativ Chauhan, learned Counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General for the respondent-State.
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4. Mr Sativ Chauhan, learned Counsel for the petitioner rt submitted that the petitioner is innocent and has been falsely implicated. He relied upon the judgments in Dharmander Singh @ SAHEB Vs. The State (Govt.) of NCT, Delhi, Bail Application No. 1559 of 2020, decided on 22.9.2020, Naveen Thapa Vs. State of H.P., Cr.MP(M) No. 2409 of 2023, decided on 28.09.2023, Vijay Verma Vs. State of H.P., Cr.MP(M) No. 1730 of 2023, decided on 8.8.2023, Yog Raj @ Yogi Vs. State of H.P., Cr.MP(M) No. 2194 of 2023, decided on 05.09.2023 and Manish Kumar Vs. State of H.P., Cr.MP(M) No. 453 of 2023, decided on 16.03.2023 in support of his submissions.
5. Mr Jitender Sharma, learned Additional Advocate General submitted that the petitioner had raped the minor victim despite knowing that he was married and having one ::: Downloaded on - 09/01/2024 20:36:14 :::CIS 4 child. This shows the grievous nature of the offences committed by the petitioner. The social impact of the crime committed by .
the petitioner is serious and he should not be released on bail.
6. I have given considerable thought to the submissions at the bar and have gone through the record carefully.
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7. The Hon'ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip rt Kumar, 2023 SCC OnLine SC 1059 as under:-
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;
(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;
(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.
(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 ::: Downloaded on - 09/01/2024 20:36:14 :::CIS 5 always a prima facie satisfaction of the Court in support of the charge.
(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 for the grant of bail by the Courts have rt been explained in the following words:
"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:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.::: Downloaded on - 09/01/2024 20:36:14 :::CIS 6
(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].)"
8. A similar view was taken in State of Haryana vs 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) rt 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:
'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:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;::: Downloaded on - 09/01/2024 20:36:14 :::CIS 7
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and .
(viii) danger, of course, of justice being thwarted by grant of bail.'
9. The victim had specifically stated that the petitioner took her and maintained a sexual relationship with her without of her consent. The statement of the petitioner is corroborated by the report of the DNA analysis, which shows that the DNA of the rt sample taken from the undergarment of the petitioner matched with the DNA of the victim. The victim was a minor on the date of the incident. Therefore, prima facie, at this stage, the petitioner is involved in the commission of offences punishable under Sections 363, 366 and 376 of IPC and Section 4 of the POCSO Act.
10. Section 30 of the POCSO Act provides that in the offences under Sections 3, 5, 7 and 9 of the Act, the Special Court shall presume that such person has committed, abetted or attempted to commit the offence unless the contrary is proved.
The offence defined under Section 3 is punishable under Section
4. The petitioner has been charged with the commission of an ::: Downloaded on - 09/01/2024 20:36:14 :::CIS 8 offence punishable under Section 4 of the POCSO Act; therefore, the presumption will apply to the present case.
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11. It was submitted relying upon the judgment of the Delhi High Court in Dharmander Singh @ Saheb (supra) that this presumption does not apply during the bail. Delhi High Court had found after the analysis that presumption will apply after of the charges are framed and not before that. Without saying rt anything about this proposition of law and assuming it to be correct, the charges have been framed in the present case and the presumption will be squarely attracted. Therefore, this judgment will not help the petitioner.
12. The legislature enacted the POCSO Act to protect the children from themselves as well as from others who are minded to prey upon them. (please see R v Corran [2005] EWCA Crim 192, para 6). The children are deemed to be incapable of consent and consent is no defence to the offences punishable under POCSO Act. Dealing with the plea of consent under the Sexual Offences Act 2003 (which is almost similar to the POCSO Act but for the age, which is 13 under the Sexual Offences Act, 2003 and 18 ::: Downloaded on - 09/01/2024 20:36:14 :::CIS 9 under the POCSO Act), Baroness Hale of Richmond held in R vs G [2008] UKHL 37as under:
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"44. Section 5 of the 2003 Act has three main features. First, it singles out penetration by the male penis as one of the most serious sorts of sexual behaviour towards a child under 13; second, it applies to such penetration of a child under 13 of either sex; and thirdly it calls this "rape". This is its novel feature but it is of scarcely a new idea. The offences of unlawful sexual intercourse under sections 5 and 6 of the 1956 Act were often colloquially known as "statutory rape". This is because the law regards the attitude of the victim of rt this behaviour as irrelevant to the commission of the offence (although it may, of course, be relevant to the appropriate sentence). Even if a child is fully capable of understanding and freely agreeing to such sexual activity, which may often be doubted, especially with a child under 13, the law says that it makes no difference. He or she is legally disabled from consenting.
45. There are a great many good reasons for this: see, eg, R v Hess; R v Nguyen [1990] 2 SCR 906, per McLachlin J. It is important to stress that the object is not only to protect such children from predatory adult paedophiles but also to protect them from premature sexual activity of all kinds. They are protected in two ways: first, by the fact that it is irrelevant whether or not they want or appear to want it; and secondly, by the fact that in the case of children under 13, it is irrelevant whether or not the possessor of the penis in question knows the age of the child he is penetrating.
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54. In effect, therefore, the real complaint is that the appellant has been convicted of an offence bearing the label "rape". Parliament has very recently decided that ::: Downloaded on - 09/01/2024 20:36:14 :::CIS 10 this is the correct label to apply to this activity. In my view, this does not engage the Article 8 rights of the appellant at all, but if it does, it is entirely justified.
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The concept of private life "covers the physical and moral integrity of the person, including his or her sexual life" (X and Y v The Netherlands, para 22). This does not mean that every sexual relationship, however brief or unsymmetrical, is worthy of respect, nor is every sexual act which a person wishes to perform. It does mean that the physical and moral integrity of the of complainant, vulnerable by reason of her age if nothing else, was worthy of respect. The state would have been open to criticism if it did not provide her rt with adequate protection. This it attempts to do by a clear rule that children under 13 are incapable of giving any sort of consent to sexual activity and treating penile penetration as a most serious form of such activity. This does not in my view amount to a lack of respect for the private life of the penetrating male.
55. Even supposing that it did, it cannot be an unjustified interference with that right to label the offence which he has committed "rape". The word "rape" does indeed connote a lack of consent. But the law has disabled children under 13 from giving their consent. So there was no consent. In view of all the dangers resulting from underage sexual activity, it cannot be wrong for the law to apply that label even if it cannot be proved that the child was in fact unwilling. The fact that the appellant was under 16 is obviously relevant to his relative blameworthiness and has been reflected in the second most lenient disposal available to a criminal court. But it does not alter the fact of what he did or the fact that he should not have done it. In my view, the prosecution, conviction and sentence were both rational and proportionate in the pursuit of the legitimate aims of the protection of health and morals and the rights and freedoms of others."::: Downloaded on - 09/01/2024 20:36:14 :::CIS 11
13. The argument that the minor had misrepresented her age and the accused was not liable was repelled as under:
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"He also commits an offence if he behaves in the same way towards a child of 13 but under 16, albeit only if he does not reasonably believe that the child is 16 or over. So in principle, sex with a child under 16 is not allowed. When the child is under 13, three years younger than that, he takes the risk that she may be younger than he thinks of she is. The object is to make him take responsibility for what he chooses to do"
14. Dealing with the dangers of premature sexual rt activities, the court held that:
"Penetrative sex is the most serious form of sexual activity, from which children under 13 (who may well not yet have reached puberty) deserve to be protected whether they like it or not. There are still some people for whom the loss of virginity is an important step, not to be lightly undertaken, or for whom its premature loss may eventually prove more harmful than they understand at the time. More importantly, anyone who has practised in the family courts is only too well aware of the long-term and serious harm, both physical and psychological, which premature sexual activity can do.
And the harm which may be done by premature sexual penetration is not necessarily lessened by the age of the person penetrating. That will depend upon all the circumstances of the case, of which his age is only one."
15. The petitioner is married and he has a child. He entered into sexual relations with the victim despite her protests. This clearly shows the heinous nature of the offence.
::: Downloaded on - 09/01/2024 20:36:14 :::CIS 12The circumstances of the case do not entitle the petitioner to release on bail.
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16. Reliance upon the judgment of this Court is wholly misplaced. In Naveen Thapa (supra), this Court found that the victim and her mother had turned hostile and the chances of the expeditious conclusion of the trial were bleak; therefore, the bail of was granted. In the present case, the matter is listed for rt prosecution evidence and the victim is yet to be examined.
Hence, the facts in the cited case do not apply to the present case.
17. In Vijay Verma (supra), the SFSL report did not show anything incriminatory against the accused which is not the case here. In Yog Raj (supra), the co-accused was already released on bail and the report of FSL did not show anything incriminatory against the accused which is not the case here because the FSL report shows that the DNA of the petitioner matched the DNA taken from undergarments of the victim. In Manish Kumar (supra), the accused was behind bars for more than one year and his trial was not likely to commence soon, which is not the case here.
::: Downloaded on - 09/01/2024 20:36:14 :::CIS 1318. In the present case, the petitioner was already arrested on 13.4.2023 and it cannot be said that the petitioner .
has been in custody for a pretty long time. Thus, this judgment will also not apply to the facts of the present case.
19. Keeping in view the gravity of the offence and the circumstances in which it was committed, the petitioner is not of entitled to grant bail; hence the present petition fails and the same is dismissed.
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20. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 9th January, 2024 (Chander) ::: Downloaded on - 09/01/2024 20:36:14 :::CIS