Himachal Pradesh High Court
Kushal Chand vs State Of Himachal Pradesh on 8 December, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 2835 of 2023 .
Reserved on: 21.11.2023 Date of Decision: 08.12.2023.
Kushal Chand ...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. Narender Reddy, Advocate.
For the Respondent : Mr Prashant Sen, Deputy Advocate General, with ASI Bharat Chandel, Police Station Janjehali, District Mandi, H.P. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail. It has been asserted that FIR No. 76 of 2023, dated 9.9.2023 was registered against the petitioner at Police Station, Janjehali for the commission of offences punishable under Sections 376 and 377 of IPC and Sections 4 and 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 08/12/2023 20:34:13 :::CIS 26 of Prevention of Children from Sexual Offences Act. As per the prosecution, the victim was brought to Civil Hospital, Janjehali .
for her medical check-up. She was found to be seven months pregnant. Her age was found to be seventeen years. Hence, the FIR was registered against the petitioner. The police arrested the petitioner. The investigation is complete. The petitioner was of falsely implicated. The petitioner would abide by all the terms and conditions, which may be imposed by the Court. Hence, this rt petition.
2. The petition was opposed by filing a status report, asserting that the Medical Officer, Civil Hospital Janjehali informed the police that the victim was brought to the hospital for a check-up. She was pregnant. Her date of birth was found to be 25.7.2006. The victim revealed on inquiry that she was unmarried but she was residing with the petitioner. The police registered the FIR and conducted the investigation. As per the report of DNA analysis, the DNA taken from the bed sheet produced by the victim matched with the DNA of the petitioner.
The challan has been prepared and presented before the Court on 7.11.2023.
::: Downloaded on - 08/12/2023 20:34:13 :::CIS 33. I have heard Mr. Narender Reddy, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate .
General for the respondent/State.
4. Mr Narender Reddy, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. As per the prosecution case, the victim was of residing with the petitioner which shows her consent. The rt victim had not lodged any FIR with the police and the FIR was lodged at the instance of the Medical Officer. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.
5. Mr. Prashant Sen, learned Deputy Advocate General submitted that the petitioner was minor and there can be no question of any consent. The victim was found to be pregnant.
The DNA of the petitioner matched with the DNA taken from the bed sheet produced by the victim, which clearly shows the involvement of the petitioner. Therefore, he prayed that the present petition be dismissed.
::: Downloaded on - 08/12/2023 20:34:13 :::CIS 46. I have given considerable thought to the rival submissions at the bar and have gone through the record .
carefully.
7. The parameters for granting bail were considered by the Hon'ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak, 2023 SCC OnLine SC 1059, wherein it was of observed as under:-
rt
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 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 ::: Downloaded on - 08/12/2023 20:34:13 :::CIS 5 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 has been explained in the following words:
of "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 rt 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.
(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 - 08/12/2023 20:34:13 :::CIS 68. 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 of 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 rt 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;
(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.' ::: Downloaded on - 08/12/2023 20:34:13 :::CIS 7
9. The present case has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
.
10. As per the status report, the victim was born on 25.7.2006; therefore, the victim is a minor.
11. The report of DNA analysis clearly shows that the of DNA obtained from the bed sheet produced by the victim matched with the DNA taken from the blood sample of the rt petitioner. The victim made a statement under Section 164 of Cr.P.C. that she was raped by the petitioner. The report of DNA analysis corroborates her version; therefore, prima facie, there is sufficient material to connect the petitioner with the commission of the offences punishable under Sections 4 and 6 of the POCSO Act.
12. It was submitted that the victim had consented to the relationship. However, this submission will not help the petitioner because the victim was incapable of consenting. 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 ::: Downloaded on - 08/12/2023 20:34:13 :::CIS 8 defence in the offences punishable under the 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 Richmond held in R vs G [2008] UKHL 37 as under:
of "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; secondly, 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 ::: Downloaded on - 08/12/2023 20:34:13 :::CIS 9 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 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 of integrity of the person, including his or her sexual life" (X and Y v The Netherlands, para 22). This does not mean that everyrt 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 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 ::: Downloaded on - 08/12/2023 20:34:13 :::CIS 10 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. Dealing with the dangers of premature sexual activities, the Court held that:
"Penetrative sex is the most serious form of sexual of 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 rt 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. Thus, the submission made by learned counsel for the petitioner that the relationship was consensual will not help the petitioner in any manner.
15. The petitioner is 22 years old and it cannot be said that he was unaware of the consequences of his act. The petitioner being mature enough should have taken care before entering into the physical relationship with the victim, who was ::: Downloaded on - 08/12/2023 20:34:13 :::CIS 11 less than 18 years of age. The repeated sexual acts and resultant impregnation of the victim show that the nature of the act is .
heinous and cannot be viewed lightly. Keeping in view the nature of the act, the petitioner is not entitled to be released on bail, hence, the present petition fails and the same is dismissed.
16. The observations made hereinbefore shall remain of confined to the disposal of the petition and will have no bearing, rt whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 8th December, 2023 (Chander) ::: Downloaded on - 08/12/2023 20:34:13 :::CIS