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2025 DIGILAW 149 (HP)

Aman @ Harsh v. State of Himachal Pradesh

2025-01-10

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 43 of 2023, dated 2.11.2023, registered at Women Police Station, Solan, for the commission of the offences punishable under Section 376D of the Indian Penal Code (IPC)and Section 4 of the Protection of Children from Sexual Offences Act (POCSO). The petitioner was arrested on 5.11.2023. The petitioner is innocent, and he was falsely implicated. The investigation is complete. The petitioner filed a bail application before learned Additional Sessions Judge Solan (Fast Track Court), which was dismissed on 27.3.2024. There is no likelihood of the petitioner absconding. He shall abide by all the terms and conditions, which the Court may impose. Hence the petition. 2. The petition is opposed to filing a status report asserting that the victim made a complaint to the police stating that she was going to Kurali on 31.10.2023. She did not have sufficient money. She called her brother and asked him to send money. He sent the money to Akshay's mobile. Akshay stated that he did not have change with him and took her to his brother's shop, whom he called Sunny. They offered a glass of juice to the victim. She became unconscious after consuming it. She was taken to a room where the petitioner and Vishal again administered a glass of juice to the victim. She became unconscious. When she regained consciousness, she found an injury on her neck and pain in her private parts. She was made to board a bus. She narrated the incident to her brother, who called her father. The matter was reported to the police. The police conducted the investigation and got the victim medically examined. The police arrested the petitioner and Vishal and subjected them to a medical examination. As per the date of birth of the victim, she was born on 28.09.2006 and was a minor on the date of the incident. The result of the analysis shows that no semen was detected in the samples collected by the medical officer; hence, the DNA profile was not conducted. The Medical Officer stated that there was nothing to suggest that sexual intercourse had not taken place. The challan was prepared and presented before the Court. The result of the analysis shows that no semen was detected in the samples collected by the medical officer; hence, the DNA profile was not conducted. The Medical Officer stated that there was nothing to suggest that sexual intercourse had not taken place. The challan was prepared and presented before the Court. The statement of the victim was recorded on 15.06.2024, and the matter is now listed on19.4.2025 for evidence. Hence, the status report. 3. I have heard Mr Ankush Verma, Advocate, learned vice counsel representing the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent-State. 4. Mr. Ankush Verma, learned vice counsel representing the petitioner, submitted that the police had filed the charge sheet. The statement of the victim has been recorded, and there are discrepancies in the statements of the victim recorded before the Court and the police. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the petitioner is involved in the commission of heinous offences. He can intimidate the witnesses in case of his release on bail. Therefore, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. The parameters for granting bail were considered by the Hon’ble Supreme Court in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under: - “12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice.The relevant observations are extracted herein below: “14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied) 13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 , this Court discussed the scope of the discretion of the Court to impose “any condition” on the grant of bail and observed in the following terms:— “15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed.” (Emphasis supplied) 14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the bail application and observed: “ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied) 8. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 9. The present petition has been filed on the premise that the statement of the victim has been recorded and there are discrepancies in her statements recorded before the Police, learned Magistrate and in the Court. It was laid down by the Hon’ble Supreme Court in X Vs. State of Rajasthan MANU/SC/1267/2024 that ordinarily, in serious offences like rape, murder, and dacoity Trial Court or the High Court should not entertain the bail application of the accused after the commencement of trial. Bail cannot be granted because there are some discrepancies in the deposition, which affects the credibility of the victim. It was observed: - “14. Ordinarily, in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court, be it the Trial Court or the High Court, should be loath in entertaining the bail application of the Accused. 15. It was observed: - “14. Ordinarily, in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court, be it the Trial Court or the High Court, should be loath in entertaining the bail application of the Accused. 15. Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim. 16. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach its final conclusion, which may either result in the conviction of the Accused or acquittal of the Accused. The moment the High Court exercises its discretion in favour of the Accused and orders the release of the Accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only in the event that the trial gets unduly delayed and that, too for no fault on the part of the Accused, the Court may be justified in ordering his release on bail on the ground that the right of the Accused to have a speedy trial has been infringed. 17. In the case on hand, the victim is yet to be examined. Her mother, who, according to the case of the prosecution, is an eyewitness, has also not been examined so far. The High Court seems to have looked into a few discrepancies in the FIR compared to the statement of the victim recorded Under Section 164 of the Code. This could not have been a good ground to exercise discretion in favour of an Accused in a serious offence like rape.” 10. In the present case also, bail has been sought on the ground of discrepancies in the statements recorded during the trial before the Magistrate and the police, which is impermissible as laid down by the Hon’ble Supreme Court. In the present case also, bail has been sought on the ground of discrepancies in the statements recorded during the trial before the Magistrate and the police, which is impermissible as laid down by the Hon’ble Supreme Court. Hence, the present petition cannot be allowed, and the same is dismissed. 11. The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.