Himachal Pradesh High Court: In a case wherein, the applicant filed an application under Section 439 of Criminal Procedure Code, 1973 (‘CrPC’), seeking to be released on bail, during the pendency of the trial, Virender Singh, J., ordered the applicant to be released on bail. The Court however expressed concerns regarding the manner in which Section 33(7) of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) was being violated and further directed the Director General of Police, Himachal Pradesh to issue necessary instructions to all Investigating Officers in the State to adhere to the provisions of Section 33(7) of the POCSO Act and issued similar directions to the Judicial Officers in the State of Himachal Pradesh, while dealing with the cases under the POCSO Act.
Background
On 30-01-2023, child-victim’s mother (‘complainant’) filed a complaint before the Police Station and stated that on 26-01-2023, the child victim went to participate in the Republic Day function in school, but did not return. The complainant provided the mobile number of the child victim and stated that the child victim was enticed away by someone and prayed to take action.
On basis of such complaint, the police registered a case under Section 363 of the Penal Code, 1860 (‘IPC’). Thereafter, the Call Detail Records of the mobile number mentioned by the complainant was obtained and it was found that there were frequent calls from the applicant’s number. However, both the applicant and the child victims number were found to be switched off. Later, during the investigation, it was found that the applicant was using a different number in the same mobile phone, and location was found to be at Kotkhai. On the basis of this fact, the child victim was found to be at Kotkhai.
On 08-02-2023, the child victim, in her mother’s presence, made a statement under Section 161 of the CrPC stating that she was residing with her uncle. Since, the child-victim was found after the gap of about 18 days, she was sent for medico-legal examination. The Medical Officer, in the medico-legal case of the child victim mentioned that she was in contact with the twenty-two-year-old applicant, for the last four-five months. After meeting the applicant on 26-01-2023, she went him to Shimla and stayed with him for 11 days. It was also revealed that sexual contact has had happened between the two.
Thereafter, the child victim was produced before the Chief Judicial Magistrate for recording her statement under Section 164 of CrPC, wherein she alleged that the applicant had ravished her, and upon which the provisions of Section 376 of the IPC and and Sections 4 and 6 of the Protection of Children from Sexual Offences Act, 2012 (‘POCSO Act’) were added in the complaint against the applicant.
After, the investigation was complete, the police filed the report under Section 173(2) of CrPC and cognizance was taken by the present Court. The case was now fixed on 14-12-2023 and 23-12-2023 for recording the witnesses statements.
However, the applicant had filed the present application under Section 439 of CrPC seeking to be released on bail, during the pendency of the trial. The applicant stated that he had nothing to do with the offences and was falsely implicated. The applicant further stated that he was a law-abiding citizen and there was no likelihood that he might not be available for the trial.
Analysis, Law, and Decision
The Court noted that the present case had been fixed for recording the statement of other witnesses in December, 2023, which meant that the chances of conclusion of the trial against the applicant was not so bright. Therefore, no useful purpose would be served by keeping the applicant in judicial custody for an indefinite period. The Court further noted that the applicant had no other criminal history.
The Court opined that “the bail application cannot be rejected as a matter of punishment, as, the accused is presumed to be innocent, till the conclusion of the trial. The dismissal of the bail application is nothing, but, punishing the applicant before the conclusion of the trial, which is prohibited under the law.”
The Court opined that at the time of deciding the bail application, the detailed discussion of evidence should be avoided as it might cause prejudice to either party. However, in the present case the main witnesses had already been examined, thus the apprehension of the allurement of the witnesses could be unfounded. Even otherwise, if the applicant was ordered to be released on bail, reasonable conditions could be imposed upon him.
Thus, the Court ordered the applicant to be released on bail on furnishing bail bonds of Rs. 50,000, subject to following conditions:
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if required, the applicant should be available for interrogation and should regularly attend the trial Court on every date of hearing and if prevented to do so, the applicant should seek exemption for appearance by filing an appropriate application;
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the applicant should not tamper with the evidence, nor hamper the investigation of the case;
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the applicant should not make any inducement, threat or promises to any person acquainted with the facts of the case; and
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the applicant should not leave India’s territory without prior permission of the Court.
The Court directed the Superintendent of Jail concerned that if the applicant failed to furnish bail bonds within one month from 28-09-2023, the said fact should be submitted to this Court.
However, the Court expressed its concerns regarding the manner in which, the mandatory provision of Section 33(7) of the POCSO Act was being violated, with impunity. The Court noted that in the status report, the Investigating Officer had mentioned the school details of the child victim and also the entire details of the child victim’s mother. The Court further noted that the same details were also mentioned by the Trial Court.
The Court stated that considering the violation of Section 33(7) of the POCSO Act, it was high time for this Court to take appropriate steps.
Thus, the Court directed the Director General of Police, Himachal Pradesh through, the Principal Secretary (Home), Government of Himachal Pradesh to issue necessary instructions to all Investigating Officers in the State to adhere to the provisions of Section 33(7) of the POCSO Act. The Court issued similar directions to the Judicial Officers in the State of Himachal Pradesh, while dealing with the cases under the POCSO Act.
[Naveen Thapa v. State of Himachal Pradesh, 2023 SCC OnLine HP 1306, Order dated 28-09-2023]
Advocates who appeared in this case :
For the Applicant: Ganesh Barowalia, Advocate;
For the Respondent: Mohinder Zharaick, Additional Advocate General, assisted by ASI Krishan Chand, Women Police Station, Kullu, H.P
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