1 Mohan Singh Vs State of HP

In the Court of Anuja Sood,

Additional Sessions Judge,
Kinnaur at Rampur Bushehar, H. P.

CIS C.N.R. No. : HPKI01-000620-2021.

CIS Case Type : Bail Application.
CIS Regd. No. : 89/2021.
CIS Case year : 28.5.2021.
Date of Decision : 14.6.2021.

Mohan Singh @ Pawan Singh, son of Sh. Prittam Singh,

resident of village Sholi, post office Sholi, Tehsil
Nankhari, District Shimla, H.P.
..Applicant.
Versus...

State of Himachal Pradesh.

..Respondent.
Bail application U/s 439 Cr.P.C.

For bail petitioner : Sh. Sat Pal Chauhan, Advocate.

For State of H.P. : Sh. Suresh Hetta, Ld. P.P.

ORDER:
The present bail application has been preferred by the

applicant for admitting him on bail. The averments made in the

application are that the applicant is resident of Village and Post Office

Sholi, Tehsil Nankhari, District Shimla, HP, who has been arrested in

case FIR No. 27/2021 dated 27.5.2021, under Sections

 2 Mohan Singh Vs State of HP

376,511,341,504 & 506 IPC, registered in Police Station, Nankhari,

District Shimla, H.P.

2. The applicant has alleged that he has been falsely

implicated in this case. He is innocent and is not indulged in this

case. It is averred that the applicant has no prior criminal history and

he is only bread winner of the family and submitted further that he

would not tamper with the prosecution evidence in any manner and

would abide by the terms and conditions of the bail if he is admitted to

bail.

3. Notice of the bail application was given to the State and

in pursuance thereof the bail application has been opposed by filing

reply.

4. In police reply, it has been averred that on 27.52021,

complainant/prosecutrix lodged a report with the police of PS,

Nankhari that she is 68 years old. On 26.5.2021 during evening time

she was coming back from her fields to her house. Then near Adda

kenchi, accused Pawan Kumar started hurling filthy abuses to her.

When she asked him not to hurl abuses, then he started scuffle with

her and put his hand in her private parts and attempted to commit

rape upon her. Prosecutrix rescued some how from the clutches of

accused and reached her house and thereafter she lodged reported

with the police. Medical of the prosecutrix was got conducted. Police

visited the spot and prepared spot map. Statement of prosecutrix

 3 Mohan Singh Vs State of HP

was recorded and video graphed. Statements of other witnesses

were also recorded. Accused was apprehended and was arrested.

Medical of accused was also got conducted. Accused was produced

before Ld. ACJM, Rampur Bushahr, from where he was sent in two

days police custody and thereafter he was remanded in judicial

custody and presently he is lodged in Sub-Jail Kaithu, Shimla. As per

police report, accused has previous criminal history and he is involved

in similar case in case FIR NO. 63/2019 dated 11.12.2019, under

Sections 341,323,354,435,504,506 IPC and 3(i)X SC&ST Act, PS,

Nankhari.

5. I have heard Sh. Sat Pal Chauhan, Advocate, ld. Counsel

for the bail applicant and Sh. Kamal Kishor Chandel, ld. PP for the

state and have gone through the record of the case carefully.

6. At the time of arguments, it was contended by Ld.

counsel for the bail applicant that the accused is innocent and is not

involved in the commission of the offence, there is delay in loding of

FIR and he undertakes to abide by the terms and conditions of bail so

imposed by the court, if the accused is ordered to be released on bail.

Ld. Counsel of the bail petitioner had also argued that the

investigation is complete and the bail petitioner is residing within the

jurisdiction of this Court and his presence can be secured by

imposing sufficient conditions and prayed for the grant of bail.

 4 Mohan Singh Vs State of HP

7. The application has been objected by the prosecution on

the grounds that the applicant has committed a heinous crime and

accused has previous criminal history and he has attempted to

commit rape on a woman who is 68 years old, and in case he is

released on bail, he may commit a similar offence or may threaten the

prosecutrix as they both are residents of same area and prayed for

dismissal of the application.

8. I have given my thoughtful consideration to the rival

contentions of ld. Counsel for both the parties and carefully gone

through the record of the case file.

9. The challan in this case has not been presented yet. Ld.

Counsel for the accused has placed reliance on P. Chidambaram

Vs Directorate of Enforcement, 2019 SCC Online SC, 1549, as

well as Nikesh Tarachand Shah Vs UOI, 2018 II SCC 1, and

argued that even if the accusation are grave but other considerations

of bail are favoring the bail applicant, he should be granted bail. He

also argued that presumption of innocence is in favour of the accused

and his liberty cannot be lightly curtailed.

10. So far as the arguments as advanced by counsel of the

accused as well as the authorities cited supra, are concerned, the

facts of these authorities are quite different from the case in hand. In

the present case, the accused is not only indulged in this case, but he

is also indulged in another case of similar nature, which fact has not
 5 Mohan Singh Vs State of HP

been disputed by counsel of the accused at the time of arguments,

but while filing the present bail application, the bail applicant did not

whisper a word that he has previous involvement in similar case.

11. Ld. Counsel for the accused also placed reliance on

Indira Roy Vs Director of Enforcement Bail application No.

249/2019 decided on 9.7.2016, but this authority is distinguishable

on facts. Ld. counsel for the bail applicant has also placed reliance on

Sidharaman Satlingappa Mhetre Vs State of Maharashtra and

others decided on 2.12.2010 and contended that no person should

be deprived of his personal liberty. So far as this authority is

concerned, in this case the Hon'ble Apex Court has considered mainly

the ambit, scope and object of concept of anticipatory bail under

Section 438 Cr.P.C. The consideration for anticipatory bail as well as

regular bail are different. As such the ratio of this judgment cannot be

applied to the case in hand.

12. So far as the bail application is concerned, the Hon’ble

Apex Court in case titled as State of UP Vs. Amarmani Tripathi

AIR 2005, Supreme Court 3490 has laid down that the matters to be

considered in an application for bail:-

(1) Whether there is any prima facie or reasonable

ground to believe that the accused has committed
the offence.

(2) Nature and gravity of the charge:

(3) Severity of the punishment in the event of

conviction.
 6 Mohan Singh Vs State of HP

(4) Danger of accused absconding or fleeing in

released on bail.

(5) Character, behavior, means, position and standing

of the accused.

(6) Likelihood of the offence being repeated.

(7) Reasonable apprehension of the witnesses being

tampered with and

(8) Danger, of course of justice being thwarted by

grant of bail.

13. Hon'ble Supreme Court in State of Orissa Vs

Mahimananda Misra (2018) 10 SCC 516 took the similar view that

while considering an application for bail, the court must take into

account the existence of prima-facie case against the accused, the

gravity of alleged offence and status of the accused, likelihood of

accused fleeing from justice, repetition of offence, the possibility of

tampering with the prosecution offence and obstructing the court, as

well as criminal antecedents of the accused. The applicant has

previously involved himself in a similar case under Section

341,332,354,504,506 IPC and under Section 3(i)X SC & ST Act,

vide FIR No. 63/2019 dated 11.12.2019, registered in Police station,

Nankhari, which is pending for trial, but while filing the present bail

application, the bail applicant did not whisper a word about his

previous involvement in a similar case. The prosecutrix is 68 years old

and the accused also has previous criminal history. I do not want to

discuss the evidence in detail at this stage, as it will prejudice the

 7 Mohan Singh Vs State of HP

merits of the case. The involvement of the accused in a similar case

previously and gravity of offence are the factors, which cannot be

ignored by the court. The Hon'ble Supreme Court in Amarmani

Tripathi as cited supra has held that the nature and gravity of charge

and likelihood of offence being repeated are the facts, which cannot

be ignored.

14. In view of above discussions, keeping in view the

nature and gravity of offence and after going through the record of the

case, I am of the considered view that the bail applicant is not entitled

to bail at this stage. With the previous criminal history of accused, the

possibility of committing similar offence cannot be ruled out

altogether. Hence, the bail application is dismissed.

15. However, the observations made herein above shall have

no bearing on the merits of the case, as said observations are made

only for the purpose of deciding the present bail application.

16. With these observations the bail application stands

disposed of. File after its due completion be consigned to the record

room.

Announced in the open Court.

14th June, 2021. sd/-
(Anuja Sood)
Addl. Sessions Judge,
*Veena* Kinnaur at Rampur Bushehar, HP.