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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
SATYEN VAIDYA, J.
Shallu – Appellant
Versus
State of Himachal Pradesh - Respondent
CR.MP(M)No. 517 of 2023
Decided on : 31-03-2023
Criminal Procedure Code, 1973 - Section 164 - Indian Penal Code, 1860 - Sections 363, 366-A, 376 - Immoral Traffic(Prevention) Act, 1956 - Sections 5, 7 - Protection of Children from Sexual Offence (POCSO) Act, 2012 - Section 4 - Grant of bail – Offence of Rape - Victim sexual assaults by diferent persons - Right of speedy trial - It was alleged that the victim was aged about 16 years and 4 months only and victim had left the home without informing any one - She was missing and was not traceable - Complainant visited the Police Station along with victim - Statement of the victim under Section 164 of Cr.P.C was recorded - After investigation, it was concluded that the victim was enticed by the petitioner and her person was used for immoral trafcking - Victim remained in custody of petitioner and victim was subjected to sexual assaults by diferent persons - Right of speedy trial is a valuable constitutional right. [Para 10].
Finding of the Court: Right of speedy trial is a valuable constitutional right available to the petitioner. No reasonable cause or reason has come forth for delay a conclusion of trial against the petitioner. She has also suffered the custody for almost two years - She cannot be allowed to be detained in custody for indeterminate period - The allegations against the petitioner are subject to proof. The fact that even the victim and her mother have not been examined by prosecution till date, reveals its non serious approach towards the matter. The petitioner cannot be made to suffer for defaults of others. 38 prosecution witnesses have been cited and in the given, facts the trial is not likely to conclude till lapse of considerable time.
Result: Petition is allowed
JUDGMENT :
Satyen Vaidya, J.
The petitioner is accused in case FIR No. 13 of 2021 dated 30.1.2021, registered at Police Station Majra, Tehsil Paonta Sahib, District Sirmour, H.P Under Sections 363, 366-A, 376 Indian Penal Code and Section 4 of Protection of Children from Sexual Offence (POCSO) Act and Sections 5, 7 of Immoral Traffic(Prevention) Act, 1956.
2. The petitioner is in custody since 05.02.2021.
3. Brief facts are that on 30.01.2021 a case was registered at Police Station Majra Tehsil Paonta Sahib, District Sirmour, at the instance of the mother of the victim. It was alleged that the victim was aged about 16 years and 4 months only and on 28.01.2021, the victim had left the home without informing any one. She was missing and was not traceable. On 31.01.2021, the complainant visited the Police Station along with the victim. On 01.02.2021, the statement of the victim under Section 164 of Cr.P.C was recorded before learned Judicial Magistrate First Class, Court No. 2 Poanta Sahib. After investigation, it was concluded that the victim was enticed by the petitioner and her person was used for immoral trafcking. The victim remained in custody of petitioner from 28.01.2021 to 31.01.2021 and during this period the victim was subjected to sexual assaults by diferent persons.
4. Petitioner has prayed for grant of bail on the ground that the allegations against her are false. The investigation is complete since long. Charges were framed against the petitioner and other co-accused on 21.05.2022, but till date none of the prosecution witnesses have been examined. It is specifcally contended that the victim and the complainant are avoiding to face the cross-examination and for such reason have not appeared before learned trial Court on many dates fixed for recording prosecution evidence. It is further submitted that the right of petitioner to speedy trial has been infringed. Petitioner cannot be allowed to be kept in custody in perpetuity. The petitioner has undertaken to abide by all the terms as may be imposed against her.
5. On the other hand, the learned Additional Advocate General has opposed the prayer for bail on the ground that the petitioner has been charged with heinous offence. In case of her release on bail, she may tamper with the prosecution evidence.
6. I have heard Mr. Rahul Singh, learned counsel for the petitioner and Mr. Arsh Rattan, Deputy Advocate representing the for the State and have also gone through the relevant record.
7. Learned counsel for the petitioner has submitted that the bail petition of the petitioner was rejected by learned Special Judge, Sirmaur, District At Nahan for the last time about 1½ year back. Thereafter charges were framed by learned trial Court on 21.05.2022 and despite repeated opportunities afforded to the prosecution none of the prosecution witness has been examined. Even the victim and her mother have not come forward to make their respective depositions before the Court. As per learned counsel for the petitioner, this is a change circumstance as the right of liberty of petitioner is being seriously prejudiced for no fault of her.
8. As per record, the charges were framed against petitioner on 21.5.2022. Thereafter, the case was fixed for prosecution evidence on 27.7.2022, 21.10.2022 and 26.12.2022, but, none of the prosecution witness was examined. Even the victim and her mother have not appeared as prosecution witnesses. On 05.01.2023, the trial was listed for proper orders and now the same has been adjourned to 11.04.2023 for recording of the statements of some of prosecution witnesses. There are total 38 numbers of cited prosecution witnesses. Evidently, the conclusion of trial is likely to take quite a considerable time, especially keeping-in-view the pace at which it is proceeding.
9. The petitioner is in custody for about two years. Not even a single prosecution witness has been examined till date. There is no allegation against the petitioner that the delay in trial is attributable
Right of speedy trial is a valuable constitutional right.
Concern of this Court at this stage is to secure fair and expeditious trial of case.
The right to speedy trial is a valuable right available to the accused, and delay in trial can be a factor in granting bail.
Point of Law : Right to speedy trial is a valuable constitutional right available to the petitioner - Petitioner has already suffered prolonged incarceration - She cannot be allowed to be detained ....
Inordinate trial delay in serious child sexual offence case violates Article 21 speedy trial right, entitling regular bail despite gravity if no tampering risk and conditions imposed.
Possibility of petitioner tampering with the prosecution evidence is found to be without substance as the material witnesses including complainant has already been examined in the case.
Right of speedy trial has been recognized to be a fundamental right under Article 21 of Constitution of India.
Completion of fair and expeditious trial can be taken care of by putting petitioner to appropriate terms.
The main legal point established in the judgment is the importance of the right to speedy trial, the presumption of innocence at the pre-conviction stage, and the potential injustice of prolonged pre....
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