HP HC | Rule is bail and not jail, object of bail is neither punitive nor preventative — Reiterated

Himachal Pradesh High Court: Sandeep Sharma, J. entertained a bail application where the accused was charged under Sections 363 and 376 IPC along with Section 4 of POCSO. The accused applied for a regular bail which was granted by the Court on certain conditions.

Factual matrix of the case was that the complainant lodged an FIR that her daughter had eloped with an unknown person, also gave all the details related to the identity of the person and information to trace him. Police filed an FIR for kidnapping. Eventually, police traced the person and the girl i.e the prosecutrix with the help of relevant information. Further, a case under Section 376 was also registered on the basis of the statements of the prosecutrix recorded under Section 164 CrPC.

Sudhir Bhatnagar, Advocate General for the State stated that challan filed by the police was fair and no leniency should be granted to the accused because of the gravity of the offence. It was further contended that there was nothing on record to prove that prosecutrix was a consenting party to the act. It was also brought to notice of the Court that because of the age of the prosecutrix the consent was immaterial as she was a minor.

On the other hand, the counsel for the applicant, Anirudh Sharma and Piyush Rathore, submitted that on a bare perusal of initial complaint and the statements recorded, nothing on the face suggested that accused kidnapped her, rather she of her won volition joined the company of the bail petitioner. They further contended that the prosecutrix had prior acquaintance with the bail petitioner and as such, it cannot be said that he took undue advantage of her innocence, sexually assaulted her against her wishes. The counsel representing the bail petitioner further contended that challan stands filed in the competent Court of law and present bail petitioner being the first offender deserve to be enlarged on bail.

The Court considered the statements recorded under Section 164 CrPC, and found that the prosecutrix had prior acquaintance with bail petitioner and they had been meeting frequently. The Court also observed that there was nothing to show that the prosecutrix was compelled to go along the accused. The Court also observed that the prosecutrix in her statement had specifically mentioned that she was taken to a particular place and family members of the accused were also present there, hence, the Court from the series of events anticipated that prosecutrix had ample of time to raise hue and cry if she was in any kind of threat or was sexually abused but she didn’t. It was also observed that though the age of the prosecutrix was 17 but her conduct made Court realized that she understood the consequences of the act.

It was further held that investigation was complete and no material was placed on record by the IO that suggested any offence. The Court relied on the judgment in Dataram Singh v. State of U.P., (2018) 3 SCC 22, where the Supreme Court held that a fundamental postulate of criminal jurisprudence is the presumption of innocence. further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer.

The Court noted that main purpose of bail was to secure the attendance of the accused in the trial and the proper test applied in the solution of the question was whether bail should have been granted or refused depended upon whether the party was up for trial and it should not be dealt as a punishment. Hence bail was granted to the accused.[Manoj Kumar v. State of Himachal Pradesh, 2019 SCC OnLine HP 1341, decided on 26-08-2019]

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