Himachal Pradesh High Court

Decided On: November 2 vs State Of Himachal Pradesh on 20 November, 2024

Author: Sandeep Sharma

Bench: Sandeep Sharma

                                                                                2024:HHC:11847




         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
                                         CrMP(M) No. 2455 of 2024
                                   Decided on: November 20, 2024
________________________________________________________
Anil Kumar                                       ...........Petitioner
                                  Versus
State of Himachal Pradesh                          ....Respondent
________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1

For the Petitioner                     :      Mr. Anirudh Sharma                    and   Mr.
                                              Pavinder, Advocates.

For the Respondent                     :      Mr. Rajan Kahol, Mr. Vishal Panwar
                                              and Mr. B.C. Verma, Additional
                                              Advocates General with Mr. Ravi
                                              Chauhan, Deputy Advocate General.

                              Investigating officer present.
________________________________________________________
Sandeep Sharma, Judge (oral):

By way of instant petition filed under S.483 of Bharatiya Nagrik

Suraksha Sanhita (hereinafter, 'BNSS'), bail petitioner Anil Kumar, who

is behind the bars since 4.3.2024, has approached this Court for grant

of regular bail in FIR No. 33, dated 4.3.2024, under Ss. 376 and 506

IPC, S.6 of Protection of Children from Sexual Offences Act and S.181

of Motor Vehicles Act, registered at Police Station Darlaghat, District

Solan, Himachal Pradesh.

2. Pursuant to order dated 6.11.2024, Investigating Officer has

come present with record. Record perused and returned.

3. Close scrutiny of the record/status report reveals that on

4.3.2024, father of victim-prosecutrix (names of both withheld to protect

their identity) alleged that his minor daughter, victim-prosecutrix aged

Whether the reporters of the local papers may be allowed to see the judgment?

2 2024:HHC:11847

17 years, 10 months disclosed to him that one month back she was

sexually assaulted by bail petitioner. He further alleged that on

3.2.2024, his minor daughter/victim-prosecutrix received a telephonic

call from bail petitioner herein, who not only misbehaved with victim-

prosecutrix but also extended threats to circulate her compromising

photographs/videos on social media. In the aforesaid background, FIR,

as detailed herein above, came to be lodged against the bail petitioner,

who was arrested on 4.3.2024 and since, then, he is behind the bars.

Since Challan stands filed in the competent court of law and nothing

remain to be recovered from bail petitioner, prayer has been made on

his behalf for grant of bail.

4. While fairly acknowledging the factum of filing of Challan in the

in the competent court of law, Mr. Rajan Kahol, learned Additional

Advocate General states that keeping in view gravity of offence alleged

to have been committed by the bail petitioner, he does not deserve

leniency and his prayer for bail deserves outright rejection. Mr. Kahol

further states that though there is overwhelming evidence available on

record suggestive of fact that taking undue advantage of innocence

and minority of victim-prosecutrix, bail petitioner repeatedly sexually

assaulted her against wishes but even if it presumed that victim-

prosecutrix had consented for such,. even that may not of much help to

the case of petitioner since the victim-prosecutrix was minor at the time

of alleged incident. He further states that since statement of victim-

prosecutrix is yet to be recorded, it may not be in the interest of justice 3 2024:HHC:11847

to enlarge the bail petitioner on bail, because in that event, he may not

only flee from justice but may cause harm to victim-prosecutrix.

5. Having heard learned counsel for the parties and perused the

material available on record, this court finds that the bail petitioner and

victim-prosecutrix had prior acquaintance and they had been meeting

since October 2023. If the statement of victim-prosecutrix recorded

under Section 164 CrPC before Magistrate is perused in its entirety, it

suggests that since October, 2023, both victim-prosecutrix and bail

petitioner had not only been sending messages to each other and

talking to each other, but had been meeting physically. It transpires

from the statement of the victim-prosecutrix that prior to lodging of FIR,

she was allegedly sexually assaulted by bail petitioner on several

occasions, but at no point of time, complaint, if any, was ever made by

the victim-prosecutrix either to her parents or to the Police. It is only

after alleged call made by the bail petitioner on 3.2.2024, when he

allegedly extended threat to circulate the compromising photographs

and videos of the victim-prosecutrix on social medial, FIR came to be

lodged against the bail petitioner. Even if it is believed that on 3.2.2024,

bail petitioner had made any telephonic call to the victim-prosecutrix, it

is not understood, what prevented victim-prosecutrix or her father from

lodging complaint immediately thereafter, rather, both kept on waiting

for at least a month and ultimately lodged complaint on 4.3.2024, on

the basis of which FIR in question was lodged against the bail

petitioner. Apart from above, there is no explanation on record that in

case victim-prosecutrix was being ravished by the bail petitioner 4 2024:HHC:11847

against her wishes for months together prior to alleged incident, why

victim-prosecutrix kept on meeting the bail petitioner. Her own

statement recorded under S.164 CrPC suggests that firstly she was

allegedly sexually assaulted against her wishes after Dussehra in the

year 2023, and thereafter, she kept on meeting bail petitioner till receipt

of telephonic call, if any, on 3.2.2024 and during this period, on a

number of occasions, bail petitioner allegedly sexually assaulted her

against her wishes.

6. Though, Mr. Rajan Kahol, learned Additional Advocate General

vehemently argued that the bail petitioner taking undue advantage of

innocence and minority of victim-prosecutrix sexually assaulted her

against her wishes but this court having noticed the conduct of victim-

prosecutrix, which is apparent from her statement recorded before the

Magistrate concerned, under S.164 CrPC, coupled with the fact that

no complaint prior to receipt of telephonic call, if any, on 3.2.2024, was

lodged by the victim-prosecutrix/complainant rather, during this period,

she kept on maintaining contact with the bail petitioner, is of the view

that victim-prosecutrix, who at the relevant time was 17 years 10

months old, was fully capable of understanding the consequences of

her being in the company of bail petitioner.

7. Though aforesaid aspects of the matter are to be dealt with by

learned trial Court, in the totality of evidence collected on record by

prosecution, but keeping in view aforesaid glaring aspects of the

matter, this court sees no reason to curtail freedom of bail petitioner for 5 2024:HHC:11847

an indefinite period during trial, especially, when his guilt, if any, is yet

to be established.

8. Hon'ble Apex Court and this Hon'ble Court have held in a catena

of judgments that one is deemed to be innocent, till the time, his/her

guilt is proved in accordance with law. In the case at hand, guilt, if any,

of the bail petitioner is yet to be proved in accordance with law, as

such, this court sees no reason to let the bail petitioner incarcerate in

jail, for an indefinite period, especially when co-accused stands

enlarged on bail.

9. Since in the case at hand, guilt of the bail petitioner is yet to be

proved in accordance with law, prayer of bail petitioner for grant of bail

deserves to be allowed. Apprehension expressed by of learned

Additional Advocate General that in the event of the bail petitioner

being enlarged on bail, he may flee from justice, can be best met by

putting the bail petitioner to stringent conditions.

10. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram

Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held

that freedom of an individual cannot be curtailed for indefinite period,

especially when his/her guilt is yet to be proved. It has been further

held by the Hon'ble Apex Court in the aforesaid judgment that a person

is believed to be innocent until found guilty.

11. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau

of Investigation (2012)1 Supreme Court Cases 49 has held that

gravity alone cannot be a decisive ground to deny bail, rather

competing factors are required to be balanced by the court while 6 2024:HHC:11847

exercising its discretion. It has been repeatedly held by the Hon'ble

Apex Court that object of bail is to secure the appearance of the

accused person at his trial by reasonable amount of bail. The object of

bail is neither punitive nor preventative.

12. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC

218, Hon'ble Apex Court has held that the object of the bail is to secure

the 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 take his

trial. Otherwise also, normal rule is of bail and not jail. Apart from

above, Court has to keep in mind nature of accusations, nature of

evidence in support thereof, severity of the punishment, which

conviction will entail, character of the accused, circumstances which

are peculiar to the accused involved in that crime.

13. The Apex Court in Prasanta Kumar Sarkar versus Ashis

Chatterjee and another (2010) 14 SCC 496, has laid down various

principles to be kept in mind, while deciding petition for bail viz. prima

facie case, nature and gravity of accusation, punishment involved,

apprehension of repetition of offence and witnesses being influenced.

14. In view of above, bail petitioner has carved out a case for

herself, as such, present petition is allowed. Bail petitioner is ordered

to be enlarged on bail, subject to furnishing bail bonds in the sum of

Rs.1.00 Lakh with two sureties, each in the like amount, to the

satisfaction of the learned Trial Court, besides the following conditions:

7 2024:HHC:11847

(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and

(d) He shall not leave the territory of India without the prior permission of the Court.

15. It is clarified that if the petitioner misuses the liberty or violates

any of the conditions imposed upon him, the investigating agency shall

be free to move this Court for cancellation of the bail.

16. Any observations made hereinabove shall not be construed to

be a reflection on the merits of the case and shall remain confined to

the disposal of this petition alone. The petition stands accordingly

disposed of.

A downloaded copy of this order shall be accepted by the

learned trial Court, while accepting the bail bonds from the petitioner

and in case, said court intends to ascertain the veracity of the

downloaded copy of order presented to it, same may be ascertained