Rakesh Kainthla, J
1. The petitioner has filed the present petition for seeking the regular bail. It has been asserted that the police arrested the petitioner on 16.06.2023 for the commission of offences punishable under Section 5(n) of the Protection of Children from Sexual Offences Act, 2012 (POCSO Act), Section 376 (2)(F) and 506 of IPC vide FIR No.73 of 2023 dated 15.06.2023 registered in Police Station, Hatli, District Mandi, H.P. The petitioner is innocent and he was falsely implicated. There is no evidence against the petitioner. The petitioner has been in judicial custody since 16.06.2023. The challan has been presented before the Court on 11.08.2023. No recovery is to be effected from the petitioner. A perusal of the FIR shows that no offence has been made against the petitioner. The petitioner approached the learned Presiding Officer, Fast-Track Court, POCSO, Mandi for bail, however, his bail application was dismissed as withdrawn. The petitioner and the victim were known to each other. There is a delay of 10 days in lodging the FIR. Relation between the petitioner and the victim would not have been accepted by the society at large. The possibility of the petitioner and the victim being attracted to each other cannot be ruled out. The DNA profiling was inconclusive. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.
2. The police filed a status report stating that the parents of the victim had gone away from their home for work on 15.06.2023 and when they returned, they found the victim to be frightened. She disclosed on enquiry that the petitioner had raped and threatened her on 05.06.2023. The petitioner again raped her on 15.06.2023. The police registered the FIR. The medical examination of the victim was conducted. As per the report of RFSL, Mandi human semen was detected on the lower, vaginal swabs, labia majora and minora swabs and vaginal slides of the victim. They were inconclusive for DNA profile. The possibility of sexual assault could not be ruled out. The date of birth of the victim was found to be 26.06.2007 as per the birth certificate and she was aged 15 years 11 months and 19 days on the date of incident. The challan has been prepared and presented against the petitioner before the Court. The matter is listed for recording the evidence of prosecution witnesses on 06.11.2023 to 08.11.2023.
3. I have heard Mr. Ajit Sharma, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State.
4. Mr. Ajit Sharma, learned counsel for the petitioner submitted that there is no evidence against the petitioner. He was falsely implicated due to the enmity between the families of the petitioner and the victim. He has relied upon the photocopy of the attendance register, in which the victim was found to be present in the school to submit that it rules out the commission of offence by the petitioner. Hence, 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 offence alleged against the petitioner is heinous. The authenticity of the photocopy produced by the petitioner is suspect, as it is not connected to the victim. Therefore, he prayed that the present petition be dismissed.
6. I have given considerable thought to the rival submissions at the bar and have gone through the records 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 observed 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 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 has 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.
(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:
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;
(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.’
9. The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court.
10. In the present case, the statement of the victim regarding sexual assault is duly corroborated by the medical evidence and the report of RFSL, Mandi, in which, the human semen was detected on the lower vaginal swabs, vaginal slides, labia majora and minora swabs of the victim. Therefore, prima facie, a case for the commission of an offence punishable under Section 376 of IPC and Section 5 of the POCSO Act has been made out against the petitioner.
11. Sh. Ajit Sharma, learned counsel relied upon the School Attendance Certificate to submit that the victim was in school and this falsifies the prosecution version. There is force in the submission of Sh. Prashant Sen, learned Deputy Advocate General that authenticity of the record is yet to be established and there is nothing to connect the record to the victim. Hence, the attendance record will not help the petitioner.
12. It was submitted that the DNA report was inconclusive and the semen sample has not been connected to the petitioner. This is a matter to be seen during the trial. The victim has categorically stated that she was raped twice by the petitioner and the same has to be accepted at this stage. She was aged less than 18 years and there can be no question of consent.
13. The petitioner is related to the victim. He abused the trust placed upon him and his act cannot be viewed lightly. 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). Therefore, any offence committed against them has to be viewed seriously. Keeping in view the nature of the offence, the petitioner cannot be released on bail.
14. It was submitted that the case is not likely to be decided soon. This is not acceptable. The learned Special Judge has fixed the case for evidence on 06.11.2023, 07.11.2023 and 08.11.2023, which shows that she is alive to the need for expeditious disposal of the case. Therefore, in these circumstances, the plea that the case of the petitioner is not likely to be decided soon does not have any substance.
15. Keeping in view the nature of the offence, the petitioner does not deserve to be released on bail, hence, the present petition fails and the same is dismissed.
16. The observations made hereinabove shall remain confined to the disposal of the application and will have no bearing, whatsoever, on the merits of the case.
