SHORT NOTE
HIMACHAL PRADESH HIGH COURT
P.S. Rana, J.
Sachin & Ors. —Applicants
versus
State of H.P. —Non-Applicant
Cr.MP(M) Nos.1362 to 1366 of 2014
Decided on 12.12.2014

IMPORTANT POINT
In a case of gang rape of minor accused persons could not be allowed bail in view of gravity of offence u/s 376D IPC and offence u/s 6 and 7 of POCSO at least till prosecutrix was examined.

Headnote:Criminal Procedure Code, 1973 — Section 439 — Bail application in a case registered for offence u/ss 363, 342, 376D, 323, 201 and 501 IPC and u/ss 6 and 17 of POCSO — Five accused persons were alleged to have committed gang rape on two minor prosecutrix — Alleged contradictory statement of two prosecutrix qua place of incident will be considered at the time of final disposal of case and bail could not be allowed on that ground — Applicants were young or their future was at stake also could not be a valid ground to release them on bail in view of gravity of offence — Mere fact that MLC of prosecutrix did not suggest any injury on any part of her body was also no ground to grant bail as opinion of medical officer was only advisory in nature — It was not expedients in ends of justice to release applicants on bail till testimonies of minor prosecutrix were recorded in Court.

       Held: Submission of learned Advocate appearing on behalf of applicants that statements of both prosecutrix recorded under Section 164 Cr.P.C. by learned Additional Chief Judicial Magistrate Sarkaghat on dated 28.1.2014 are contradictory to each other qua place of incident and on this ground bail applications filed by applicants be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that fact of contradictory statements of two minor prosecutrix qua place of incident recorded under Section 164 Cr.P.C. will be considered at the time of final disposal of case and same cannot be considered in bail matter because statements recorded under Section 164 Cr.P.C. could be used only for corroboration or contradiction purpose during the trial of the case as per law.

       Another submission of learned Advocate appearing on behalf of the applicants that applicants are innocent and they did not commit any offence cannot be decided at this stage. Same fact will be decided when the criminal case shall be disposed of on merits after giving due opportunity to both the parties to lead evidence in support of their case.

       Another submission of learned Advocate appearing on behalf of the applicants that applicants are young youths and their future prospects are at stake and on this ground bail applications be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that allegations against the applicants are for commission of criminal offence of gang rape upon two minor prosecutrix. Gang rapes are increasing in the society day by day. It is well settled law that gang rape offences are stigma on the society. It is well settled law that every girl and woman has legal right to live in the society with honour and dignity. It is also well settled law that no one can be allowed to attack upon the dignity of minor girls or women in the society in order to maintain harmony in the society and in order to maintain majesty of law in the society.

       Another submission of learned Advocate appearing on behalf of the applicants that investigation in present case is complete and charge sheet has been filed and on this ground bail applications filed by applicants be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that in view of gravity of offence against the applicants under Section 376D IPC i.e. gang rape and in view of allegations of criminal offence under Sections 6 and 17 of POCSO Act 2012 i.e. aggravated penetrative sexual assault upon minor prosecutrix it is not expedient in the ends of justice to release the applicants on bail at this stage.

       Another submission of learned Advocate appearing on behalf of the applicants that identification of accused persons was not established and identification parade was not conducted and on this ground bail applications filed by applicants be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. As per Section 54A of the Code of Criminal Procedure 1973 identification parade is conducted if the same is necessary for the purpose of investigation of the case. It is well settled law that identification parade is not mandatory in all criminal offences.

       Another submission of learned Advocate appearing on behalf of the applicants that MLC of minor prosecutrix did not suggest any injury on any part of body of minor prosecutrix except small abrasions on right little finger and on this ground bail be granted to applicants is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that opinion of medical officer is only advisory in nature and even as per Section 30 of Protection of Children from Sexual Offence Act 2012 the Court shall presume culpable mental state of accused. It is well settled law that POCSO Act 2012 is a special Act and it is also well settled law that when there is conflict between the special law and general law then special law always prevails upon the general law.

       Another submission of learned Advocate appearing on behalf of the applicants that learned trial Court has not considered the medical evidence, contents of FIR and statements of both girls under Section 164 Cr.P.C. and on this ground bail be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that medical evidence is proved as per testimony of medical officer and till date statement of medical officer is not recorded in present case therefore it is not expedient in the ends of justice to release applicant on bail. Similarly contents of FIR and contents of statements recorded under Section 164 Cr.P.C. could be used only for corroboration and contradiction purpose during trial of the case. At the time of granting bail following factors are considered. (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. See AIR 1978 SC 179 titled Gurcharan Singh and others v. State (Delhi Administration). Also see AIR 1962 SC 253 titled The State v. Captain Jagjit Singh.

       Submission of learned Additional Advocate General appearing on behalf of the State that in view of gravity of offence against the applicants under Sections 363, 342, 376D, 323, 201 and 511 IPC and Sections 6 and 17 of POCSO Act 2012 bail application filed by applicants be rejected is accepted for the reasons hereinafter mentioned. Keeping in view the allegations of gang rape and in view of allegations of aggravated penetrative sexual assault upon minor prosecutrix as per POCSO Act 2012 and in view of the fact that both minor prosecutrix were minor at the time of commission of alleged offence Court is of the opinion that it is not expedient in the ends of justice to release the applicants on bail at this stage till testimonies of minor prosecutrix are not recorded in trial Court. Court is also of the opinion that if applicants are released on bail at this stage then trial of case will be adversely effected and there is apprehension in the mind of Court that if applicants are released at this stage then applicants will induce and threat the prosecution witnesses. Facts of case law cited by learned Advocate appearing on behalf of the applicant i.e. 2012(1) SCC page 40 titled Sanjay Chandra vs. Central Bureau of Investigation and facts of present case are entirely different and distinguishable and are not applicable in present case. Case reported in 2012(1) SCC page 40 titled Sanjay Chandra v. Central Bureau of Investigation did not relate to gang rape case upon minor prosecutrix under Section 376D IPC and also did not relate to aggravated penetrative sexual assault upon minor prosecutrix under POCSO Act 2012. In view of above stated facts point No.1 is answered in negative.

       Result: Petitions dismissed.