The main legal point established in the judgment is the presumption of innocence, the general rule of bail over jail, and the importance of considering the nature of accusations, evidence, severity of punishment, and the character of the accused when deciding on bail.

Sandeep Sharma, J.

Bail petitioner namely, Sushil Kumar, who is behind the bars since 7.2.2018, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.37 of 2018, dated 5.2.2018, under Sections 363, 376 of IPC and Section 4 of the Protection of Children from Sexual Offences Act, registered at police Station, Sadar District Mandi, Himachal Pradesh.

2. Sequel to orders dated 5th/11th October, 2018, SI Pawan Kumar, has come present alongwith the record. Mr. Dinesh Thakur, learned Additional Advocate General has also placed on record status report, prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned.

3. Record/status report reveals that FIR, detailed hereinabove, came to be lodged at the behest of mother of the prosecutrix, who alleged that her minor daughter, who at the time of alleged incident was 17 years and 11 months old, has been kidnapped by some unknown person. On the basis of aforesaid complaint having been filed by the complainant, police made certain inquires, but fact remains that on 6.2.2018 daughter of the complainant herself returned back to her residence and disclosed to her mother that bail petitioner took her to one hotel last night and sexually assaulted her. After recording the statement of the complainant, police registered a case against the bail petitioner under Sections 363, 376 of IPC and Section 4 of the POCSO Act.

4. Mr. Nimish Gupta, learned counsel representing the bail petitioner, while inviting attention of this Court to record/status report, vehemently argued that no case is made out against the bail petitioner because there is no material adduced on record suggestive of the fact that bail petitioner had kidnapped the victim/prosecutrix, rather she of her own volition joined the company of bail petitioner and remained in his company. He further contended that medical evidence adduced on record, nowhere suggests commission of offence, if any, under Section 376 IPC committed by the bail petitioner. While referring to the previous medical history of victim/prosecutrix, Mr. Gupta, made an attempt to persuade this Court to agree with his contention that prosecutrix is habitual and as such, bail petitioner, who is behind the bars for the last more than 9 months, deserves to be enlarged on bail. He further contended that challan stands already filed in the competent Court of law and since nothing is required to be recovered from the bail petitioner, bail petitioner cannot be allowed to incarcerate in jail for indefinite period.

5. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly acknowledging the factum with regard to filing of challan in the competent Court of law, contended that keeping in view the gravity of the offence allegedly committed by the bail petitioner, he does not deserves to be enlarged on bail. Learned Additional Advocate General further contended that it has specifically come in the medical evidence that victim/prosecutrix is not mentally well and bail petitioner taking undue advantage of her mental condition not only eloped with her, but also sexually assaulted her against her wishes. While refuting the contention of learned counsel for the petitioner that nothing has emerged in the medical evidence against the bail petition, learned Additional Advocate General, contended that it has specifically come in the medical evidence that victim/prosecutrix was subjected to sexual intercourse. He further contended that previous history, if any, of victim/prosecutrix cannot be a ground for bail petitioner to seek bail in the case at hand, when admittedly it stands duly proved on record that bail petitioner taking undue advantage of the innocence of victim prosecutrix, who at the time of alleged incident was minor, sexually assaulted her.

6. Having heard learned counsel for the parties and perused the mat