IMPORTANT POINT
Bail – Pre-trial incarceration needs justification depending upon nature of offence, terms of sentence prescribed, probability of accused fleeing from justice, hampering investigation, criminal history of accused, and doing away with victim(s) and witnesses. Court is under obligation to maintain balance between all stakeholders and safeguard interests of victim, accused, society and State.

JUDGMENT

Anoop Chitkara, J.—The petitioner, aged 21 years, who is incarcerating upon his arrest for alluring and raping a minor girl, aged 16 years, who resides in the adjacent village of petitioner, has come up before this Court seeking regular bail on the grounds that the family of the girl forced her to lodge a false complaint to break their love affair.

2. Based on a complaint, the police arrested the petitioner on 2.9.2020, in FIR No.107 of 2020, dated 1.9.2020, registered under Section 376, 363 and 366A of Indian Penal Code, 1860, (IPC), and Section 4 of the Protection of Children from Sexual Offices, Act, 2012 (POCSO Act), in Police Station Dharampur, District Solan, Himachal Pradesh, disclosing cognizable and non-bailable offences.

3. The petitioner’s criminal history relating to the offences prescribing sentence of greater than seven years of imprisonment or when on conviction, the sentence imposed was more than three years: The contents of the petition and the status report do not reveal any criminal history.

4. Briefly, the allegations against the petitioner are that on 1st September, 2020, the father of the victim visited Police Station, Dharampur, District Solan and gave a written report. The contents of the application, which was addressed to SHO was that his daughter aged 16 years was missing on 31st August, 2020 from 12.30 p.m, i.e, day time. He further told the SHO that the victim had gone to fetch water from ‘Baudi’, which at 100 mtrs. distance but she did not return home. The family conducted frantic search but could not trace her. On verifying one phone, which belongs to the mother of the complainant, i.e., grand mother of the victim, they noticed one phone call, which had come from Mobile No.8894819690. When the complainant called back on the said number, it was switched off, but they came to know from inquiries that the phone belongs to Karan-petitioner herein. Thus the complainant suspected that Karan had allured his daughter and has run away with her.

5. After registration of the FIR, the police conducted frantic search of the victim. On the night of 1st September, 2020, the petitioner Karan reached home and he was brought to the police station to inquire about the victim. He informed the investigator that the victim was with him and he dropped her near a forest. In the meanwhile at 1.00 a.m in the intervening neight of 1st and 2nd September, 2020, the complainant informed the police that the victim had reached home on her own. After that, the police took the victim for medical examination and subsequently, got her statement recorded under Section 161, Cr.PC. The version of the victim while deposing in her statement under Section 161, Cr.PC that when she was with the accused-petitioner when he started touching her and requested her to indulge coitus but she refused. After that, during the medical examination of the victim, the police had also collected scientific evidence but the same was sent for examination in State Forensic Science Laboratory, Junga. The report of the Laboratory did not find presence blood or semen in any such evidence.

6. Mr. Rajesh Parmar, learned counsel for the petitioner contends that the victim and the petitioner belong to adjacent villages and are known to each other from childhood and it is a case of romantic love and not of rape and that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

7. While opposing the bail, Mr. Nand Lal, learned Additional Advocate General submits that since the victim is a minor, as such there is no question of consent.

Analysis and Reasoning:

7. In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565, (Para 30), a Constitutional bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-me