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2025 DIGILAW 680 (HP)

Gagan Kumar v. State of Himachal Pradesh

2025-04-08

VIRENDER SINGH

body2025
JUDGMENT : (Virender Singh, J.) Apprehending his arrest, in case FIR No.18/2025 dated 11.03.2025 (hereinafter referred to as the ‘FIR in question’), registered under Section 64(2)(m) of the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as the ‘BNS’) and Section 4 of the Protection of Children from Sexual Offences Act (hereinafter referred to as the ‘POCSO Act’), with Police Station Janjehli, District Mandi, H.P., applicant-Gagan Kumar has filed the present application, under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’). 2. By way of the present application, the applicant has sought the indulgence of this Court to direct the I.O/police of Police Station Janjehli, District Mandi, H.P., to release him, on bail, in the event of his arrest, in the above-mentioned case/FIR. 3. The said relief has been sought on the ground that he is innocent person and has falsely been implicated, in this case. He has termed the entire allegations, levelled against him, as false and concocted one. 4. According to the applicant, he is from a respectable family, having deep roots in the society. In addition to this, he has pleaded that he is having no criminal antecedents. 5. On the basis of above facts, certain undertakings have been given, on behalf of applicant, for which, the applicant is ready to abide by, in case, any direction is issued to the police/I.O., in this case. 6. Vide order dated 18.03.2025, State was directed to file the status report and consequently, status report has been filed. 7. As per the status report, which has been filed on 18.03.2025, on 11.03.2025, ASI Bharat Chandel, along with other police officials, left the Police Station, in order to verify the factual position, as mentioned in Rapat No.19 and Rapat No.21. On the spot, Tikma Devi, Asha Worker got recorded her statement, under Section 173 of BNSS, disclosing therein that on 10.03.2025, one Sunita, whose parental house in Village ‘X’, requested her on phone to prepare Mother and Child Card (Jacha Bacha Card) for her sister-in-law, who is eight-month pregnant. 7.1. Thereafter, the Aadhaar Card of the said pregnant lady was forwarded to the complainant through WhatsApp. 7.1. Thereafter, the Aadhaar Card of the said pregnant lady was forwarded to the complainant through WhatsApp. On checking, it has been found that the date of birth of the said lady is 25.08.2007 and her age was found to be 17 years and 7 months, upon which, the complainant informed CHO Gyanita, FHW Ghomti Sharma and Dr. Dhriti Gupta and as per their directions, complaint was made on Helpline No.1098. 7.2. On the basis of above facts, police registered the case, under Sections 64(2)(m) of BNS and Section 4 of the POCSO Act. The photocopy of the Aadhaar Card of the child victim was obtained, according to which, her date of birth was found to be 25.08.2007. The statement of the child victim, under Section 180 of BNSS, was recorded, in which, she has got recorded that she has voluntarily made physical relations with Gagan Kumar (applicant), in the year 2024 and when, she felt pain in her stomach, then, she, with the help of the pregnancy kit, has tested and it was found that she was pregnant. 7.3. Thereafter, child victim disclosed the said fact to Jamuna on 10.03.2025, who has informed complainant- Tikma Devi and Tikma Devi, on the basis of Aadhaar Card of the child victim, lodged the complaint. Subsequently, the medico legal examination of the child victim was got conducted from Civil Hospital, Janjheli. Spot was visited and spot map was prepared. The custody of the child victim was handed over to Jamuna with the consent of her father. Father of the child victim produced the copy of the Parivaar Register, which was taken into possession. 7.4. It is the case of the police that thereafter, the child victim was produced before the Court of learned Judicial Magistrate First Class, Thunag, where, her statement, under Section 183 of BNSS, was recorded. 7.5. On 12.03.2025, the statement of the witness, under Section 180 of BNSS, was recorded, in which, she has got recorded that after passing Class IX examination, she has discontinued her studies. According to her, they are seven brothers and sisters and her parents are agriculturists by profession. 7.6. According to her further version, in the month of August, 2024, in order to attend the marriage of her cousin brother, she had gone to Village Lambathach Janjheli, District Mandi, where, she met Gagan Kumar (applicant). According to her, they are seven brothers and sisters and her parents are agriculturists by profession. 7.6. According to her further version, in the month of August, 2024, in order to attend the marriage of her cousin brother, she had gone to Village Lambathach Janjheli, District Mandi, where, she met Gagan Kumar (applicant). Subsequently, they exchanged their mobile numbers and started talking and liking each other. In the year 2024, one day, the child victim had gone with Gagan Kumar (applicant) to his house and Gagan Kumar (applicant) took her to his room, where, both of them, with their consent, developed physical relations, due to which, she got pregnant. According to her, she is interested to live with Gagan Kumar (applicant), as, she loves him. 7.7. On the basis of above stand, interim protection was awarded to the applicant, vide order dated 18.03.2025 and the case was adjourned to 25.03.2025 enabling the State to file fresh status report. 7.8. In the status report, filed on 25.03.2025, similar facts have been mentioned. 7.9. Thereafter, vide order dated 27.03.2025, notice was ordered to be issued to child victim and consequently, she appeared before this Court on 02.04.2025. 8. In view of the statement of the child victim, as recorded by the police, under Section 173 of BNSS, the applicant is able to make out a case, in his favour, as, it is not the case of the police that the custodial interrogation of the applicant is required. 9. Even otherwise, the role of the applicant in the commission of the alleged crime will be proved during the trial. The chances of commencement and conclusion of trial against the applicant, in near future, are not so bright and the bail application cannot be rejected as a matter of punishment, as, pre-trial punishment is prohibited under the law. 10. Moreover, the applicant is the permanent resident of District Mandi. As such, it cannot be apprehended that in case, the interim order is made absolute, he may not be available for the trial. 11. Considering the peculiar facts of the case in totality, this Court is of the view that the applicant is entitled for the relief, as claimed in the application. As such, it cannot be apprehended that in case, the interim order is made absolute, he may not be available for the trial. 11. Considering the peculiar facts of the case in totality, this Court is of the view that the applicant is entitled for the relief, as claimed in the application. Consequently, interim order, dated 18.03.2025, is made absolute and the applicant is ordered to be released on bail, in the event of his arrest, subject to furnishing personal bonds in the sum of Rs.50,000/-, with one surety in the like amount to the satisfaction of the Investigating Officer. 12. This order, however, shall be subject to the following conditions:- a) That the applicant will join the investigation of the case, as and when, called for, by the Investigating Officer, in accordance with law; b) That the applicant will not leave India, without prior permission of the Court; c) That the applicant will not directly or indirectly, make any inducement, threat or promise to any person, acquainted with the facts of the case, so as to dissuade him/her from disclosing such facts to the Investigating Officer or the Court; and d) That the applicant shall 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’ 13. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application. 14. The applicant is directed to move regular bail application, when chargesheet will be filed in the competent Court of law. 15. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found violated by the applicant.