Bail is a right, not a punishment; pre-trial incarceration should be avoided unless necessary, especially when charges are unproven and trial is delayed.

JUDGMENT :

Bipin Chander Negi, J.

The present bail petition has been filed under Section 483 of the Bharatiya Nagarik Suraksha Sanhita (BNSS) for grant of regular bail. The same arises out of FIR No.106 of 2023, dated 31.05.2023, registered at Police Station, Bhuntar, District Kullu, Himachal Pradesh, under Sections 341, 342, 363, 376 & 120-B of the Indian Penal Code read with Section 4 of the Protection of Children from Sexual Offences Act, 2012.

2. Heard learned counsel for the parties and perused the status report and the record so produced.

3. Admittedly, in the case at hand, the bail petitioner is aged 22 years. The bail petitioner had previously approached this Court videCr.MP(M) No.723 of 2024. The same was dismissed vide order dated 15.05.2024. At the time, when the bail petitioner had approached this Court, the matter was listed for Consideration of Charge before the trial Court. From perusal of the status report filed, it is evident that Charge, in the case at hand has not been framed as yet and the matter is coming up for Consideration of Charge on 19.02.2025. The petitioner was apprehended by the Police and he is in custody since 06.09.2023.

4. The consequences of pre-trial incarceration are grave. A person presumed innocent is subjected to psychological and physical deprivations of jail. Further, a jailed individual is prevented from contributing to the preparation of his defence. The burden of his detention falls heavily on the innocent members of his family. Personal liberty is a very precious fundamental right. The same is to be curtailed only when it becomes imperative, according to the peculiar facts and circumstances of each case.

5. Long incarceration with the unlikelihood of the trial being completed in near future is a good ground for bail. Trial, in the case at hand, has not commenced, as Charge has not been framed as yet. Since 31.03.2024, till date, Charge has not been framed as has already been stated supra, the matter is coming up for framing of Charge on 19.02.2025. There are about 27 witnesses in all, out of which, 15 are official witnesses. Unlikelihood of the trial being completed any time soon is writ large.

6. Real life considerations, when the victim and the accused are at an age of innocence, as in the case at hand, cannot be lost sight of and an innocent though un-holy “physical alliance” may be looked at with less severity. POCSO Act does not impose any special prohibition for grant of bail in offence(s) committed under the Act, rather Section 31 thereof makes provisions of Cr.P.C. including provisions as to bail and bonds applicable to the proceedings therein.

7. Petitioner is in custody since 06.09.2023. The trial is going to take time before conclusion. The charges against the petitioner are yet to be proved. Pre-trial incarceration is not the rule. No past criminal history has been attributed to the petitioner. Further detention of the petitioner in judicial custody will not serve any fruitful purpose rather may prove pre-judicial to the rights of the petitioner, who is in early years of life.

8. Petitioner is a permanent resident of Village Gahar, Post Office, Seobagh, Tehsil and District Kullu, Himachal Pradesh and the respondent/State has not expressed any apprehension regarding his fleeing from course of justice and adversely affecting the trial. In any case, petitioner can be put to the terms for the purpose of safe, secure and unobstructed completion of trial.

9. Needless to say, object of bail is to secure attendance of the accused in the trial and the proper test to be applied in the solution of the question, whether bail should be granted or refused is whether it is probable that the party will appear to face the trial. Otherwise, bail is not to be withheld as a punishment. Bail is normal rule and the jail is an exception.

10. Hence, after going through the material available on record and considering the overall facts and circumstances of the case, this Court finds that the present is a