Himachal Pradesh High Court
Akash Chaudhary vs State Of Himachal Pradesh on 17 June, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 780 of 2024 .
Reserved on: 10.6.2024 Date of Decision: 17.06.2024.
Akash Chaudhary ...Petitioner
Versus
State of Himachal Pradesh
Coram
r to ...Respondent
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the petitioner : Mr. Pranshul Sharma, Advocate.
For the Respondent : Mr Prashant Sen, Deputy Advocate General.
Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Section 376(2) of IPC and Section 6 of the Prevention of Children from Sexual Offences Act (POCSO), registered vide case FIR No. 31/2023, dated 8.8.2023 at Women Police Station, Solan, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 17/06/2024 20:32:16 :::CIS 2The petitioner is in judicial custody at District Jail, Solan. Police got recorded the statement of the victim under Section 164 of .
Cr.P.C., in which she had stated that the petitioner should be released on bail as the mistake was committed by both parties.
The police have presented the challan and the matter is listed for framing of charges. The petitioner is aged 20 years and the victim is aged more than 15 years. The parties were in love with each other and both the parties are at fault. No useful purpose would be served by detaining the petitioner in judicial custody.
He would abide by all the terms and conditions, which may be imposed by the Court. Hence, the petition.
2. The petition is opposed by filing a status report asserting that the victim made a complaint to the police stating that she and her sister had gone to their mother's house on 22.6.2023 during the school vacation. She met the accused who was her neighbour. The accused called her to his room and raped her eight times. She returned to her maternal grandmother. She was taken to a doctor because she was suffering from a cold. The doctor found that the victim was pregnant. The police registered the FIR and conducted the investigation. The date of birth of the victim was found to be 27.2.2008. The challan has been prepared ::: Downloaded on - 17/06/2024 20:32:16 :::CIS 3 and presented before the Court and is listed on 28.6.2024 for evidence.
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3. Notice of the petition was issued to the victim's mother, who stated that she would adopted the stand of the State.
4. I have heard Mr. Pranshul Sharma, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the respondent-State.
5. Mr. Pranshul Sharma, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. Both the parties were at fault. The petitioner is a young person. The victim has expressed no objection for releasing the petitioner on bail. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. He has relied upon the judgment of this Court in Pratap Vs. State, Cr.MP(M) No. 1437 of 2022, decided on 10.8.2022, Prem Dutt Vs. State, 2023 (1) HLR HC 151, Deepanshu Gagat Vs. State of H.P. 2020 (4) Criminal Court Cases 533, Sanjeev Kumar Vs. State of H.P. 203 (2) HLR HC 1267 and Delhi High Court in Sanjay Kumar Vs. State, Bail Application No. 2898 of 2022, decided on 28.7.2023.
::: Downloaded on - 17/06/2024 20:32:16 :::CIS 46. Mr. Prashant Sen, learned Deputy Advocate General for the respondent-State submitted that the petitioner was aged .
20 years and was aware of the consequences of his acts. The consent of the minor is irrelevant and no advantage can be taken by the petitioner from the same. Hence, he prayed that the present petition be dismissed.
7. I have given considerable thought to the submissions at the bar and have gone through the records carefully.
8. The Hon'ble Supreme Court had discussed the parameters for granting the bail in Bhagwan Singh v. Dilip 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 ::: Downloaded on - 17/06/2024 20:32:16 :::CIS 5 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 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.
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 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.::: Downloaded on - 17/06/2024 20:32:16 :::CIS 6
(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].)"
9. A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:
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:
'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;::: Downloaded on - 17/06/2024 20:32:16 :::CIS 7
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and .
standing of the accused;
(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.'
10. The victim specifically stated in the complaint made by her to the police that the accused had called her to his room, where he raped her eight times. It was submitted that the victim had consented which is evident from the fact that she had not made any complaint to any person. This submission will not assist the petitioner.
11. 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, ::: Downloaded on - 17/06/2024 20:32:16 :::CIS 8 2003 and 18 under the POCSO Act), Baroness Hale of Richmond held in R vs G [2008] UKHL 37 as 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 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 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.
Xxx
54. In effect, therefore, the real complaint is that the appellant has been convicted of an offence bearing the ::: Downloaded on - 17/06/2024 20:32:16 :::CIS 9 label "rape". Parliament has very recently decided that 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.
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 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 with adequate protection. This 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 ::: Downloaded on - 17/06/2024 20:32:16 :::CIS 10 the legitimate aims of the protection of health and morals and the rights and freedoms of others."
12. The argument that the minor had misrepresented her .
age and the accused was not liable was repelled as under:
"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 she is. The object is to make him take responsibility for what he chooses to do"
13. Dealing with the dangers of premature sexual 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."
14. The petitioner is aged 20 years and would be aware of the consequences of his acts. Therefore, he cannot take shelter ::: Downloaded on - 17/06/2024 20:32:16 :::CIS 11 behind the plea of consent. In Pratap (supra) and Prem Dutt (supra), the long custody of the petitioner weighed with the .
Court while granting the bail, which is not the case here. In Deepanshu (supra), there was no indication of recent sexual intercourse and the hymen of the victim was found to be normal, which is missing in the present case, as the victim was found to be pregnant. In Sanjeev Kumar (supra), the parties wanted to marry each other and the victim had also filed a petition seeking protection from her parents which is missing in the present case. In Sanjay Kumar (supra), the Delhi High Court held that POCSO intended to protect children below the age of 18 years from sexual exploitation and was never meant to criminalize consensual romantic relations between young adults. It is difficult to gather such an intention from the reading of the POCSO Act. Hence, this judgment cannot be followed.
15. Keeping in view the fact that the petitioner had not only sexually assaulted the victim but had made her pregnant, the petitioner cannot be released on bail. Consequently, the present petition fails and the same is dismissed.
::: Downloaded on - 17/06/2024 20:32:16 :::CIS 1216. The observation made herein before shall remain confined to the disposal of the instant petition and will have no .
bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
17th June, 2024
(Chander)
r to
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