IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.M.P.(M) No. 863 of 2009. Date of decision :14.10.2009. Raj Kumar & Another …Petitioner Versus State of H.P. …Respondent Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. For the petitioner: Mr.M.S. Thakur, Advocate. For the respondent: Mr.Ankush Dass Sood, Additional Advocate General. Dev Darshan Sud, J. This petition has been preferred by the petitioners herein under Section 439 of the Code of Criminal Procedure (hereinafter referred to as the `Code’) for the grant of bail. A case under Sections 376, 341, 120-B of the Indian Penal Code and Section 67 of Information and Technology Act was registered against the petitioners at Police Station Amb, District Una, H.P. It was alleged that on 10.4.2009 the prosecutrix Lalita Kumari was returning home at around 12.30 in the afternoon when she was accosted by both the accused. Petitioner No.2 Kulwant Rai committed rape on her while petitioner No.1 Video filmed the entire ghastly act on his mobile phone. They were 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. 2 arrested on the same day. The petitioners-accused are now in judicial lock up. Prior to the institution of the present application, another bail petition being Cr.M.P.(M) No.599 of 2009 was filed by both the applicants in this Court and vide order dated 27th July, 2009 directed that since challan has been filed in the Court of learned Judicial Magistrate Ist Class, Amb, in those circumstances it was open to the petitioners herein to petition that Court for grant of bail. Subsequently, an application under Section 439 of the Code of Criminal procedure was filed by the applicants on 11th August, 2009, which has been dismissed by the learned Additional Sessions Judge, Una on 2nd September, 2009. While dismissing the application, the learned Court holds that since the petitioners are prima facie guilty of the offences as alleged and that the entire episode has been filmed on mobile phone, they do not deserve to be released on bail. I have heard learned counsel for the petitioners and learned Additional Advocate General for the respondent. The principles for granting bail are now well settled. It is undisputed before me that the case is now listed for recording evidence on behalf of the prosecution. I do not find from the order of the learned Court below that there has been any consideration with respect to the fact as to whether the release of the petitioners on bail would in any manner endanger the safety of the prosecutrix or that 3 they are going to tamper with the prosecution evidence. Merely saying that there is a prima facie involvement, as narrated by the prosecutrix, is hardly a ground for denying bail. The case is at trial stage. They are in custody for a period of more than six months. Learned Additional Advocate General submits that the accused are guilty of committing a heinous offence of rape and filming the entire ghastly episode of having forcible sexual intercourse with the prosecutrix. He submits that in these circumstances, the liberty of the accused would prima facie itself be a danger not only to the prosecutrix but to the society at large. This generalization cannot be accepted. The fact, as to whether the petitioners are guilty or not, is a matter of trial. Prima facie they have been named by the prosecutrix. I do not find from the record that any evidence of the video filming by mobile camera has been placed on record of the case. I do not wish to accept the contention of the learned Additional Advocate General, but the mere fact that petitioners have been named by the prosecutrix would not make them perse guilty of having committed the offences, as alleged. I do not find any material on record which states that the accused are of a criminal propensity, who are intent upon causing physical violence to the prosecutrix nor has this Court been informed that there is any material on the record to suggest that they will in any manner tamper with the prosecution evidence. The Court below has 4 ignored the crucial and central factors which are required to be considered for the grant of bail. In these circumstances, this application is allowed subject to the following conditions that: (i) the applicants shall be granted bail subject to their furnishing bail bonds to the tune of Rs.20,000/- each with one surety each of the like amount to the satisfaction of the learned trial Court; (ii) they shall not leave the jurisdiction of the learned trial Court without its prior permission; (iii) they shall report to the Police Station, Amb everyday in the morning at 10.00 O’clock and in the evening at 6.00 O’clock, where record shall be maintained regarding their presence. After 6.00 O’clock, they shall not be seen in public but shall be confined to their respective residences; (iv) they shall not tamper with or interfere with the prosecution evidence; (v) they shall not terrorize, threaten any prosecution witness or tamper with the prosecution evidence. (vi) In the event of breach of any of these conditions, their bail bonds shall stand forfeited and they shall be arrested forthwith. This application is disposed of accordingly. October 14, 2009. (Dev Darshan Sud) (aks) Judge.