Himachal Pradesh High Court
Anu Kumar vs State Of Himachal Pradesh on 20 December, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MPM No. 2183 of 2023 Reserved on: 29.11.2023 .
Date of Decision: 20th December, 2023 Anu Kumar ....Petitioner Versus State of Himachal Pradesh of ....Respondent Coram Hon'ble Mr Justice Rakesh Kainthla, Judge.
rt Whether approved for reporting?
For the Petitioner : Mr. Rakesh Kumar Chaudhary, 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 the Police registered an F.I.R. No. 15 of 2023, dated 12.04.2023, at police Station Mandi, District Mandi, H.P. for the commission of offences punishable under Sections 376 (2) (n) (3) of IPC and Section 6 of the Protection of Children from Sexual Offences Act, 2012 (in short POCSO Act). The petitioner was arrested on 14.04.2023 and he has been in judicial custody since then. The petitioner is a respectable Whether reporters of the local papers may be allowed to see the judgment? Yes ::: Downloaded on - 21/12/2023 20:32:46 :::CIS 2 person of the society and he was falsely implicated in the case.
The petitioner is a student and he has a bright academic career.
Keeping the petitioner behind bars indefinitely would jeopardize .
his career. The Trial has not commenced as yet and it will take some time to conclude it. A person cannot be deprived of his life and liberty except under a procedure which is reasonable, fair and of just. The right to a speedy trial is being violated. He is ready and willing to join the investigation and abide by all the terms and conditions, which may be imposed by the Court upon him.
rt Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.
2. The State has filed a status report asserting that the informant reported to the police that the victim aged about 15 years was pregnant. The police conducted the investigation. The victim made a statement under Section 164 of Cr.P.C.
Subsequently, the victim delivered a baby. The DNA taken from the blood sample of the baby matched with the DNA taken from the blood sample of the petitioner. The victim met the petitioner during a fair and he entered into sexual relations with her consent. They had married in Shama Kali Temple. The petitioner has committed the offences punishable under Section 376 (2)(n) ::: Downloaded on - 21/12/2023 20:32:46 :::CIS 3 of IPC and Section 6 of the POCSO Act, which are heinous. The petitioner can intimidate the witnesses and abscond, if he is released on bail. It was prayed that the bail petition of the .
petitioner be dismissed.
3. I have heard Mr. Rakesh Kumar Chaudhary, learned counsel for the petitioner and Mr. Jitender Sharma, learned of Additional Advocate General for the respondent/State.
4. Mr. Rakesh Kumar Chaudhary, learned counsel for the rt petitioner submitted that the petitioner is innocent and he was falsely implicated. As per the police report the victim had entered into sexual relations with the petitioner with her consent. She had even disclosed her age as 18 years, which shows that the petitioner had not entered into sexual relations with the minor knowingly. He prayed that the present petition be allowed and petitioner be released on bail.
5. Mr. Jitender Sharma, learned Additional Advocate General submitted that as per the record, the age of the victim was 15 years and she cannot consent. The consent of the minor is immaterial and will not help the petitioner. Hence, he prayed that the present petition be dismissed.
::: Downloaded on - 21/12/2023 20:32:46 :::CIS 46. I have given considerable thought to the submissions .
at the bar and have gone through the record carefully.
7. The Hon'ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under:-
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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 rt 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 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 ::: Downloaded on - 21/12/2023 20:32:46 :::CIS 5 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 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 of 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 rtand 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.
(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].)"::: Downloaded on - 21/12/2023 20:32:46 :::CIS 6
8. A similar view was taken in State of Haryana vs Dharamraj2023 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) 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:
of '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 rt 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;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and ::: Downloaded on - 21/12/2023 20:32:46 :::CIS 7
(viii) danger, of course, of justice being thwarted by grant of bail.'
9. The present case has to be decided as per the .
parameters laid down by the Hon'ble Supreme Court.
10. The status report clearly shows that the date of birth of the victim was 27.08.2007, therefore, the victim was less than 16 years old at the time of the incident. The DNA taken from the of blood sample of the baby matched with the DNA taken from the blood sample of the petitioner, which shows that the petitioner is rt the biological father of the baby. Therefore, at this stage, it established that the petitioner had subjected the victim to sexual intercourse and the victim had given birth to a baby.
11. It was submitted that the relationship with the consent. However, this submission is not acceptable because the victim specifically stated in her complaint that the petitioner had maintained sexual relations with her despite her protest. This statement has to be accepted as correct at this stage. Even otherwise the victim was minor and incapable of consenting.
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, ::: Downloaded on - 21/12/2023 20:32:46 :::CIS 8 para 6). The children are deemed to be incapable of consent and consent is no defence in 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 under the POCSO Act), Baroness Hale of Richmondheld in R vs G [2008] UKHL of 37as under:
"44. Section 5 of the 2003 Act has three main features. First, it singles out penetration by the male penis as one rt 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 ::: Downloaded on - 21/12/2023 20:32:46 :::CIS 9 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 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 of 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 rt 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 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 ::: Downloaded on - 21/12/2023 20:32:46 :::CIS 10 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."
13. The argument that the minor had misrepresented her of 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 rt 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"
14. 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 ::: Downloaded on - 21/12/2023 20:32:46 :::CIS 11 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. Thus, the submission made by learned counsel for the .
petitioner that the relationship was consensual and the victim had disclosed her age as 18 years will not help the petitioner in any manner.
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16. It was submitted that denial of bail is punitive and violative of Article 21 of the Constitution of India. This submission rt is not acceptable. Bail is a security in the form of money whose purpose is to ensure the Court appearance of the accused. Denial of bail is used to detain those whom the Judge believes to be dangerous and/or those likely to re-engage in crime if released.
Historically, the bail has prevented the accused from fleeing from the criminal justice and protected the society by ensuring that additional criminal activity is prevented. It was believed that the graver the crime the graver the chances of absconding, therefore, bail would not be granted in cases involving capital offences because the accused had nothing to lose by running away, whereas he would gain his liberty by absconding. Hence the bail was denied in a heinous offence. In addition to this, when there were chances of interference with the criminal administration of ::: Downloaded on - 21/12/2023 20:32:46 :::CIS 12 justice by threatening the witnesses and interfering with the investigation, the bail was denied. When the accused was found to be a repeat offender, the bail was denied because the safety of .
society would be jeopardized by releasing such a person on bail.
The bail is never denied as a punishment to the person but as a protection to the criminal administration of justice and society.
of Therefore, the submission that pre-trial detention is a punishment and violative of Article 21 of the Constitution of India cannot be accepted.
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17. It was submitted that there is a delay, this is not acceptable. The status report shows that the matter was listed before the learned Trial Court on 29.11.2023, which shows that the trial is progressing as per law. It is not mentioned that no witnesses have been examined. The incident took place in April 2023 and sometime would be taken to conclude the trial. Thus, the petitioner is not entitled to bail on the ground of delay.
18. The petitioner is 22 years old and cannot be said to be unaware of the consequences of his act. He should have taken care before entering into sexual relations with the victim, who was less than 18 years of age. The repeated sexual acts and ::: Downloaded on - 21/12/2023 20:32:46 :::CIS 13 resultant impregnation of the victim show that the nature of the act is heinous and cannot be viewed lightly. Therefore, keeping in view the nature of the act, the petitioner is not entitled to be .
released on bail. Consequently, the present petition fails and the same is dismissed.
19. The observation made herein before shall remain of confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
rt (Rakesh Kainthla)
Judge
20th December,2023
(Ravinder)
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