Hukam Singh vs State Of Himachal Pradesh

Satyen Vaidya, J

Petitioner is an accused in case FIR No. 13/2021, dated 30.01.2021, registered at Police Station Majra, Tehsil Paonta Sahib, District Sirmour, H.P., under Sections 363, 366-A, 376 of IPC, Section 4 of POCSO Act and Section 5, 7 of the Immoral Traffic (Prevention) Act, 1956.

Petitioner is in custody since 28.02.2021.

Petitioner has approached this Court for grant of bail under Section 439 of the Code of Criminal Procedure in the above noted case, on the grounds that false case has been foisted against him. He is not involved in any offence much less the offence alleged against him. He has no past criminal history. There is no legal evidence against the petitioner to establish a prima-facie case against him.

It has further been contended on behalf of the petitioner that earlier also, he filed the bail petition before this Court, which was registered as Cr.MP(M) No. 793 of 2021 but the same was dismissed on 15.06.2021. Petitioner again approached this Court by another bail petition under Section 439 of the Cr.P.C. being Cr.MP(M) No. 1685 of 2021, which was again dismissed on 02.09.2021.

As per petitioner, he is innocent and a law abiding citizen. The allegations against him are highly unbelievable. There is unexplained delay in lodging the FIR. The challan stands filed on 27.03.2021 after completion of the investigation. The conclusion of trial is likely to take considerable time.

Petitioner is a young person and belongs to a respectable family. His family is at the verge of starvation. Father of the petitioner is seriously ill and paralyzed and there is no one to attend him physically as well as financially.

Petitioner has undertaken not to tamper with the prosecution evidence. He has further undertaken to abide by all the conditions as may be imposed upon him.

It has been alleged by the petitioner that the present bail petition has been filed in the changed circumstances as other similarly situated co-accused have been enlarged on regular bail and on interim bail. It has further been averred that every day pre-trial detention is a change in circumstance.

In response, the respondent-State has placed on record status report. As per case of the respondent, the case was registered at the instance of the mother of the victim. She had alleged that on 28.01.2021, the victim, who was only 16 years 4 months old, had left the home without informing anyone.

She was missing and was not traceable despite being searched. On 31.01.2021, the complainant visited the police station alongwith the victim. On 01.02.2021, the victim's statement under Section 164 of Cr.P.C was recorded before the learned Judicial Magistrate First Class, Court No. II, Paonta

Sahib. After investigation, it was concluded that the victim was enticed by one of the co-accused named Shalu and her person was used for immoral trafficking. The victim remained in custody of co-accused Shalu from 28.01.2021 to 31.01.2021 and during this period, the victim was subjected to sexual assaults by different people including the petitioner. It has been alleged that the petitioner was identified by the victim from his D.P. on the mobile phone.

I have heard learned counsel for the petitioner as well as learned Additional Advocate General and have also perused the status report as well the police file produced at the time of arguments.

Petitioner, on earlier two occasions had approached this Court for grant of bail in the same case and on both the occasions, his bail petitons have been dismissed by considering the merits of the case for the purposes of bail. On 15.06.2021, Cr.MP(M) No. 793 of 2021 filed by the petitioner was rejected by a Co-ordinate Bench of this Court by holding as under:​

The bail petition of another accused who paid for sex with the minor victim is CrMPM 793 of 2021 Hukam Singh v. State. Para 9 of the bail petition filed by Hukam Singh (A-6) is extracted as follows,“That the alleged victim in the case in hand is about 16 years 4 months and her act and conduct reflects her ability and understanding as of a grown up woman having mental and physical capacity to take decision as evident from her behavior.” The Protection of Children from Sexual Offences Act, 2012 had come into force w.e.f. 20thJune 2012. S. 2 (d) of POCSO defines any person below eighteen years as a child. Subsequent amendments of IPC, the Legislature increased the age of consent from 16 to 18 years. Given above, this submission is without any legal basis, and the bail is denied. Consequently, Cr.M.P.M 793 of 2021 Hukam Singh v. State is dismissed.

Another bail petition of the petitioner was rejected by the same Bench of this Court on 02.09.2021 being Cr.MP(M) No. 1685 of 2021 by holding as under:​

Now the petitioner has again come up before this Court by filing the present bail petition.

The trial of the case is still at its initial stages and the offence committed by the petitioner is heinous in nature as he has committed rape upon an innocent minor girl. Moreover, the petitioner has not brought on record fresh facts/grounds for his release on bail, as such, the he is not entitled for bail, at this stage.

It is trite that successive regular bail applications under Section 439 of Cr.P.C. can be maintained only if there are changed circumstances and such changed circumstances warrant the grant of bail. The challan in the case was filed on 27.03.2021 i.e. before the decision in both the above noted bail petitions of the petitioner. The change in circumstance, as pleaded by the petitioner, is that other similarly situated co-accused have been enlarged on regular bail and on interim bail. In support of this contention, petitioner has placed on record an order dated 15.06.2021 passed by the Co-ordinate Bench of this Court in Cr.MP(M) No. 527 of 2021 and others connected matters, whereby one of the co-accused named Arun Thakur was released on bail on the ground that his case was different from other co-accused as he was merely a Receptionist in the Hotel and was instructed by the owner not to make entries in the Visitors Book. No role of sexual assault was attributed to said Arun Thakur by the victim. However, by the aforesaid common order, the bail petition i.e. Cr. MP(M) No. 793 of 2021 of the petitioner was rejected. Vide order dated 05.08.2021 passed by Co-ordinate Bench of this Court in Cr.MP(M) No. 1487 of 2021, another co-accused named Ajay Kumar was ordered to be released on bail on the ground that he was suffering from serious Psychiatric ailment and was undergoing treatment from P.G.I., Chandigarh. In view of this matter, the petitioner can not claim parity with co-accused Arun Thakur and Ajay Kumar, who have been released on bail by considering the merits of their respective cases.

The petitioner has not been able to justify the filing of third successive bail petition before this Court in the same case without showing changed circumstance(s) in his favour.

In State of H.P. Vs. Kajad, 2001, 7 SCC 673, it has been held by the Supreme Court that successive bail applications are permissible under the changed circumstances only and filing of such successive bail applications, without change in circumstances, amounts to seeking review of earlier order on the bail application, which is not permissible under the criminal law.

Further contention of the petitioner that during pre trial period, every day constitutes changed circumstance, can not be countenanced. Such a contention defies logic. A change in circumstance can not be an automatic event and has to be specifically made out by the petitioner in order to maintain successive bail applications. In the considered opinion of this Court, the petitioner has failed to make out a case of change in circumstances to avail the benefit of bail in the instant case.

In view of above discussion, there is no merit in the petition and the same is dismissed.