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2025 DIGILAW 772 (HP)

Vijay Kumar v. State of Himachal Pradesh

2025-04-22

RAKESH KAINTHLA

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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. 38/2024 dated 22.08.2024 registered at Women Police Station Solan, District Solan, H.P., for the commission of offences punishable under Section 64 of Bharatiya Nyaya Sanhita ( BNS ), 2023 and Section 6 of the Protection of Children from Sexual Offences Act (in short ‘POCSO Act’). The police have filed a charge sheet before the learned Trial Court after the completion of the investigation. The petitioner is not required for investigation, and no recovery is to be made from him. He would abide by all the terms and conditions which the Court may impose. He is the only bread-earning member of the family. His mother is an aged widow. The petitioner has taken a loan from a financial institution, and it is difficult for him to repay the loan; hence, the petition. 2. The petition is opposed by filing a status report asserting that the victim had met with an accident and was undergoing treatment at IGMC. The doctor informed her brother that she was pregnant. He made inquiries and the victim revealed that the petitioner had raped her. She was 17½ (seventeen and a half years) old at the time of the incident. The police registered the FIR and conducted the investigation. The victim stated in her statement recorded under Section 183(3) of Bhartiya Nyaya Suraksha Sanhita that the petitioner had raped her 4-5 times in his home. He took her to his home in July 2024 and also took her to a hotel, where he raped her. The police arrested the petitioner. The police seized the visitor register from the hotel. The victim was born on 07.01.2007. She was aged 17 years, 08 months and 15 days on the date of the incident. The result from FSL is awaited. The challan has been filed and presented before the Court on 16.10.2024. The charges were framed on 23.01.2025, and the matter was listed for recording the victim’s statement on 27.02.2025, hence the status report. 3. I have heard Ms. Ruchika Khachi, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State. 4. Ms Ruchika Khachi, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. 3. I have heard Ms. Ruchika Khachi, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State. 4. Ms Ruchika Khachi, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The relationship between the parties, if any, was consensual. She prayed that the present petition be allowed and the petitioner be released on bail. She relied upon the judgment of this Court in Virender Singh versus State of H.P. , 2021 SCC Online HP 280 , in support of her submission. 5. Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State, submitted that the petitioner had impregnated a minor child, which is a heinous offence. The statement of the victim is still to be recorded, and the petitioner would intimidate her 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 Ajwar v. Waseem (2024) 10 SCC 768 : 2024 SCC OnLine SC 974, wherein it was observed at page 783: - “Relevant parameters for granting bail 26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P. [ Chaman Lal v. State of U.P ., ( 2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 : 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] . 8. This position was reiterated 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. 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 an 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) 9. This position was reiterated in Shabeen Ahmed versus State of U.P., 2025 SCC Online SC 479. 10. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. The status report shows that the victim was born on 07.01.2007, and she was aged 17 years 8 months 15 days on the date of the incident. It was submitted that the relationship between the parties was consensual, however, this is not acceptable. The victim was a minor and incapable of consenting. The judgment in Virender Singh (supra) cites Anversinh alias Kiransinh Fatesinh Zala vs. State of Gujarat , 2021 SCC Online SC 19 wherein it was held that the consent of the minor is irrelevant and it can only invoke the sympathy of the Court but cannot change the law, therefore, this judgment will not assist the petitioner in any manner. 12. The victim was a minor. She had met with an accident. She was unable to move. The petitioner took advantage of the victim’s minority and the temporary disability; hence, the nature of the offence committed by the petitioner is heinous, and the petitioner cannot be released on bail. 13. 12. The victim was a minor. She had met with an accident. She was unable to move. The petitioner took advantage of the victim’s minority and the temporary disability; hence, the nature of the offence committed by the petitioner is heinous, and the petitioner cannot be released on bail. 13. It was submitted that there is a delay in the progress of the trial. This submission is not acceptable. The copies of the order sheets filed by the petitioner show that the victim was under treatment and not in a position to depose. Admittedly, the victim had met with an accident and her absence in the Court cannot be said to be unjustified. Illness is a circumstance beyond the control of the person, and it cannot be said that there is any deliberate delay on the part of the prosecution in examining her. 14. No other point was urged. 15. Consequently, the present petition fails, and the same is dismissed. 16. The observations made hereinabove are regarding the disposal of this petition and will have no bearing whatsoever on the case's merits.