Kulveer Veer v. State of Uttarakhand

This is the first bail application moved before this Court.

3. The case in the present matter is that the complainant’s minor daughter, aged 17 years, was enticed away at night by one Aash Mohammad and taken to Landhora, Mangalore, where she was allegedly sexually assaulted by Aash Mohammad and another older man. It is noteworthy that the name of the present applicant is not mentioned in the FIR. The narrative is focused on the actions of the co-accused. 1

4. Learned counsel for the applicant submitted that there is no direct allegation of sexual assault against the applicant. The initial statement of the victim does not even name him. There has also been no recovery from or at the instance of the applicant, nor has any Test Identification Parade (TIP) been conducted to establish his identity conclusively. The State has failed to produce any independent witness who can affirm the presence or involvement of the applicant in the alleged incident.

5. A crucial point pressed during the hearing was that the arrest of the applicant is vitiated on account of non-compliance with constitutional safeguards. The arrest memo does not disclose any grounds of arrest. Despite this procedural defect being flagged at the trial stage, the State has not produced any material before this Court to demonstrate that the grounds of arrest were ever communicated to the applicant.

6. This omission amounts to a violation of Article 22(1) of the Constitution of India, which mandates that no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds of such arrest.

7. In response, learned State Counsel opposed the bail application on several grounds. It was argued that the offences alleged are of a grave and heinous nature, involving the abduction and sexual exploitation of a minor girl. The age of the victim has been duly established through school records, which indicate that she was born on 05.04.2007 and was therefore below 18 years of age on the date of the incident.

8. The State further contended that the name of the present applicant has come out in the subsequent statement of the victim, and 2 her testimony is consistent in attributing a facilitating role to him in taking her to the place of occurrence along with the co-accused. The charge sheet has been submitted after due investigation, and prima facie, a case is made out against the applicant.

9. Learned State Counsel further submitted that in cases of sexual assault involving minors, the presence of independent witnesses is often unlikely. The testimony of the child victim, if found credible, may be sufficient to sustain a conviction. The FIR was lodged without delay upon the victim narrating the incident to her father, and the victim’s subsequent statements have corroborated the sequence of events.

10. This Court has heard learned counsel for the parties and perused the material on record, including the case diary, arrest memo, medical records, and statements recorded under the BNSS.

11. The arrest memo is devoid of any grounds, and the State has failed to demonstrate compliance with Article 22(1), so the Court finds the arrest constitutionally infirm. Such a lapse is not a mere technical irregularity but a substantive violation of fundamental rights.

12. The name of the present applicant surfaced only during the course of investigation, when the victim’s statement under Section 183 of the BNSS was recorded. Initially, she referred to an individual named “Munero,” later clarifying that he was “Veer,” i.e., the applicant.

13. This evolving identification, without any TIP or corroborative evidence, casts doubt on the reliability of the State’s case against the applicant. He has no criminal antecedents, has remained in custody 3 since 31.05.2024, and no recovery has been made from him. The FSL report is awaited, and the trial has not commenced.

14. The present case warrants the grant of bail in light of significant constitutional and procedural infirmities. The applicant’s name does not appear in the FIR and surfaced only in the victim’s subsequent statement, wherein she initially referred to a person named “Munero” and later identified him as “Veer”, the present applicant. No Test Identification Parade (TIP) was conducted to corroborate this evolving identification, which undermines its evidentiary value. {{{{{{

15. The Hon’ble Supreme Court in State of Uttar Pradesh v. Rajveer Singh, (2009) 13 SCC 480 and Rameshwar Singh v. State of J&K, (1971) 2 SCC 715, has held that identification of an accused for the first time in court, without a prior TIP, carries diminished probative worth. Further, there is no direct allegation of sexual assault against the applicant; no recovery has been made from or at his instance; and there are no independent witnesses affirming his involvement. Coupled with the State’s failure to communicate the grounds of arrest as mandated under Article 22(1) of Constitution, as well as the applicant’s clean antecedents and continued pre-trial custody since 31.05.2024, the case for bail stands on firm legal footing.

16. This Court is of the view that pre-trial incarceration should not become a punishment in itself. The object of bail is to secure the appearance of the accused at trial, and not to penalise him prior to conviction. 4

17. Considering the absence of direct evidence, the constitutional infirmity surrounding the arrest, and the applicant’s clean antecedents, this Court finds it a fit case for the grant of bail. ORDER

18. Let the applicant-Kulveer @ Veer, be released on bail on his furnishing a personal bond and two reliable sureties of like amount, to the satisfaction of the Court concerned, subject to the following conditions: (i) The applicant shall not tamper with the evidence or influence any witness in any manner. (ii) The applicant shall appear before the trial court on all dates fixed and shall cooperate with the trial; and (iii) It is made clear that in case of breach of any of the above conditions, the State shall be at liberty to apply for cancellation of bail.

01.04.2025 (Ashish Naithani, J.) NR NITESH RAWAT DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=bea38a9cb7bca67cc3988ad93d563d95c70eb77fa0ea4758e401cf436bdce9fb, postalCode=263001, st=UTTARAKHAND, serialNumber=F691686B3C447434E89897BCDC0B6567DCE4B7108B324FFED3C8A159F3BDD03C, cn=NITESH RAWAT 5