Neutral Citation No. ( 2025:HHC:20106 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1012 of 2025 Reserved on: 16.06.2025 Date of Decision: 27.06.2025 Ramesh Kumar ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : M/s Sarthak Karol and Vaibhav Chauhan, Advocates. For the Respondent : Mr. Lokender Kutlehria, Additional Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in FIR No. 21 of 2023, dated 08.11.2023, registered at Women Police Station, Shimla, for the commission of offences punishable under Sections 417 and 376(2)(n) of the Indian Penal Code (IPC). 2. It has been asserted that the police have filed the charge sheet on 22.12.2023 in the Court of learned Sessions Judge Rape/POCSO/CJM, Shimla. The charges were framed on 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Neutral Citation No. ( 2025:HHC:20106 ) 18.03.2024. One witness out of 23 has been examined. The petitioner has been in custody for one year and five months, and no fruitful purpose would be served by his further detention. The matter was listed before the learned Trial Court on 13.05.2025. The victim was examined on 03.10.2024. Her statement contained various discrepancies. The case arose from a mutual, consensual relationship between the petitioner and the victim, which began in October 2019. The victim initiated and sustained the relationship voluntarily. She moved into the petitioner’s residence in Shimla and later cohabited with him at Panchkula. The relationship between the parties deteriorated in the year 2022 when the petitioner refused to marry the victim. She made a complaint that the petitioner had made a false promise to marry her and had engaged in physical relations with her under the pretext of marriage. She claimed that she became pregnant twice, but these pregnancies were terminated by the victim herself without any influence from the petitioner. She filed the FIR at Police Station, Sector 5, Panchkula, which was transferred to Shimla. The FIR was filed with an ulterior purpose. The relationship developed between the parties with the victim’s consent. She herself decided to move in with the petitioner. The 3 Neutral Citation No. ( 2025:HHC:20106 ) consensual relationship between two voluntary adults should not be criminalised when the relationship becomes sour. There is a delay in lodging the FIR and a prolonged silence on the part of the victim. The petitioner had earlier filed a bail petition bearing Cr.MP(M) No. 2927 of 2023, which was dismissed on 08.01.2024, and another petition, which was registered as Cr.MP(M) No.2369 of 2024 and was withdrawn on 20.12.2024. The right to a speedy trial of the petitioner is being violated. The trial is likely to take some time; therefore, it was prayed that the present petition be allowed and the petitioner be released on bail. 3. The petition is opposed by filing a status report asserting that the informant made a complaint to the police stating that she had joined at Shimla. Her house was at a distance from Shimla, so she resigned; however, the Company cancelled the resignation and transferred her to Panchkula. The petitioner was employed in the same Company in which the informant was working. The informant had no place to stay. The petitioner asked her to stay in the official guest house of the Company. She arranged a room at Manimajra. She requested the Head of the Department to increase her salary, but he declined and asked her to shift to Shimla. She refused but was compelled to go to Shimla. 4 Neutral Citation No. ( 2025:HHC:20106 ) She contacted the petitioner and asked him to arrange a room in Shimla. The petitioner sent the photograph of a two-room set. She went to Shimla and saw that one room had a double bed and the other room was empty. The petitioner was present in the room. He told her that one bed belonged to her and the other bed belonged to him. The petitioner was intoxicated after fifteen days. He touched the informant inappropriately. The informant protested. He promised to marry her. They had sexual relations thereafter. The informant went to attend the marriage of her brother. A lockdown was imposed in the meantime. The petitioner took the informant to his sister’s house, where she remained for 27 days. The informant became pregnant. The petitioner forced the informant to abort the fetus. The petitioner continued to maintain sexual relations with the informant. She again became pregnant. The petitioner administered some drugs to her. The petitioner got engaged in the meantime. The informant informed her superior officer, who promised that the petitioner would break off the engagement and marry her. However, the petitioner got married. The police registered the FIR and conducted the investigation. The police arrested the petitioner and seized his mobile phone and the informant’s 5 Neutral Citation No. ( 2025:HHC:20106 ) mobile phone. The petitioner is in judicial custody. The petitioner had entered into a sexual relationship with the informant on the pretext of marriage, but he married somewhere else. The result from FSL has been received. No semen was detected in the samples except the semen sample of the petitioner. No DNA profiling was conducted. The petitioner is capable of performing sexual intercourse, and the possibility of recent sexual assault upon the victim could not be ruled out, as per the report of the Medical Officer. The chat was found present in the mobile phone (Exhibit X1). The obscene images of the victim were also detected in the data extracted from the mobile phone; however, these were not found to have been circulated to any person. The chat and audio were found in the mobile phone (Ext. 2). No other case has been registered against the petitioner. Statements of 21 witnesses have been recorded, and statements of 14 witnesses are yet to be recorded. The matter was listed before the learned Trial Court on 18, 19 and 20th of June 2025. 4. I have heard M/s Sarthak Karol and Vaibhav Chauhan, learned Counsel for the petitioner, and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent-State. 6 Neutral Citation No. ( 2025:HHC:20106 ) 5. Mr. Sarthak Karol, learned Counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The parties were in a consensual relationship with each other, and a false case was made against the petitioner by the victim. It is difficult to believe that the victim would have continued to cohabitate with the petitioner for more than five years on the false promise to marry. The petitioner has been inside the jail for more than one and half years, and there is no possibility of the early conclusion of the trial. He is entitled to bail because of violation of his right to a speedy trial. There are contradictions in the statements of the victim recorded in the Court and the FIR, which make the prosecution's case highly suspect. He relied upon the judgments in Sureshanand vs. State of Haryana in SLP(Crl.) No.3017 of 2025, Ravish Singh Rana vs. State of Uttarakhand, 2025 SCC Online SC 1055, Mahesh Damu Khare vs. State of Maharashtra, 2024 SCC Online SC 3471, Nitin B. Nikhare vs. State of Maharashtra, SLP(Crl.) Nos. 1889 of 2024 dated 21.01.2025, Pramod Suryabhan Pawar vs. State of Maharashtra, 2019 (9) SCC 608, Deepak Gulati vs. State of Haryana, 2013 (7) SCC 675, Prem Prakash vs. Enforcement Directorate, 2024 (9) SCC 787 and Athar 7 Neutral Citation No. ( 2025:HHC:20106 ) Parwez vs. Union of India, 2024 SCC Online SC 3762 in support of his submission. 6. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the Court had earlier dismissed the bail petition of the petitioner. A fresh bail petition lies only when there is a change in the circumstances. The prosecution has examined 21 witnesses and the matter was listed on 18, 19 and 20th of June, 2025. There is no delay in the progress of the trial, and the plea of petitioner that his right to a speedy trial is being violated is not correct; therefore, he prayed that the present petition be dismissed. 7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. It is undisputed that the petitioner had earlier filed a bail petition bearing Cr.MP(M) No. 2927 of 2023 dated 08.01.2024 and Cr.MP(M) No.2369 of 2024, dated 20.12.2024, which were dismissed by this Court. It was held in the State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC 605, that once a bail application has been dismissed, a subsequent bail application 8 Neutral Citation No. ( 2025:HHC:20106 ) can only be considered if there is a change of circumstances. It was observed: “Once that application was rejected, there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact situation. And when we speak of change, we mean a substantial one, which has a direct impact on the earlier decision and not merely cosmetic changes, which are of little or no consequence. 'Between the two orders, there was a gap of only two days, and it is nobody's case that during these two days, drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed, reversing all earlier orders, including the one rendered by Puranik, J., only a couple of days before, in the absence of any substantial change in the fact situation. In such cases, it is necessary to act with restraint and circumspection so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one judge or selected another to secure an order which had hitherto eluded him. 9. Similarly, it was held in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 that where an earlier bail application has been rejected, the Court has to consider the rejection of the earlier bail application and then consider why the subsequent bail application should be allowed. It was held: “11. In regard to cases where earlier bail applications have been rejected, there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications 9 Neutral Citation No. ( 2025:HHC:20106 ) have been rejected and after such consideration, if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent bail application should be granted.” 10. A similar view was taken in State of T.N. v. S.A. Raja, (2005) 8 SCC 380, wherein it was observed: 9. When a learned Single Judge of the same court had denied bail to the respondent for certain reasons, and that order was unsuccessfully challenged before the appellate forum, without there being any major change of circumstances, another fresh application should not have been dealt with within a short span of time unless there were valid grounds giving rise to a tenable case for bail. Of course, the principles of res judicata are not applicable to bail applications, but the repeated filing of bail applications without there being any change of circumstances would lead to bad precedents. 11. This position was reiterated in Prasad Shrikant Purohit v. State of Maharashtra (2018) 11 SCC 458, wherein it was observed: 30. Before concluding, we must note that though an accused has a right to make successive applications for the grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds, which persuade it to take a view different from the one taken in the earlier applications. 12. It was held in Ajay Rajaram Hinge v. State of Maharashtra, 2023 SCC OnLine Bom 1551, that a successive bail application can be filed if there is a material change in the 10 Neutral Citation No. ( 2025:HHC:20106 ) circumstances, which means a change in the facts or the law. It was observed: 7. It needs to be noted that the right to file successive bail applications accrues to the applicant only on the existence of a material change in circumstances. The sine qua non for filing subsequent bail applications is a material change in circumstance. A material change in circumstances settled by law is a change in the fact situation or law which requires the earlier view to be interfered with or where the earlier finding has become obsolete. However, a change in circumstance has no bearing on the salutary principle of judicial propriety that successive bail application needs to be decided by the same Judge on the merits, if available at the place of sitting. There needs to be clarity between the power of a judge to consider the application and a person's right based on a material change in circumstances. A material change in circumstance creates in a person accused of an offence the right to file a fresh bail application. But the power to decide such subsequent application operates in a completely different sphere, unconnected with the facts of a case. Such power is based on the well-settled and judicially recognised principle that if successive bail applications on the same subject are permitted to be disposed of by different Judges, there would be conflicting orders, and the litigant would be pestering every Judge till he gets an order to his liking resulting in the credibility of the Court and the confidence of the other side being put in issue and there would be wastage of Court's time and that judicial discipline requires that such matter must be placed before the same Judge, if he is available, for orders. The satisfaction of material change in circumstances needs to be adjudicated by the same Judge who had earlier decided the application. Therefore, the same Judge needs to adjudicate whether there is a change in circumstance as claimed by the applicant, which entitles him to file a subsequent bail application.” 11 Neutral Citation No. ( 2025:HHC:20106 ) 13. Therefore, the present bail petition can only be considered based on the change in the circumstances, and it is not permissible to review the order passed by the Court. 14. It was submitted that the victim’s version that the petitioner had promised to marry her is not correct. She remained in a continuous relationship with the petitioner. This plea cannot be adjudicated in the present petition. This Court had specifically considered this plea while deciding the earlier bail petition, and it was held that the petitioner never had any intention to marry the informant, and her consent was obtained by deception. There was sufficient material to connect the petitioner with the commission of a crime punishable under Section 376(2)(n) of the IPC. This Court does not sit in review over the order passed by the Court earlier while deciding the subsequent bail petition, and it is impermissible to adjudicate whether a case for the commission of an offence punishable under Section 376(2)(n) is made out or not. It was laid down by the Hon’ble Supreme Court in State of M.P. v. Kajad, (2001) 7 SCC 673: 2001 SCC (Cri) 1520: 2001 SCC OnLine SC 1070 that it is impermissible to review the earlier order of bail in the subsequent bail petition and the Court can only consider the change in circumstances. It was observed at page 676: 12 Neutral Citation No. ( 2025:HHC:20106 ) 8. It has further to be noted that the factum of the rejection of his earlier bail application bearing Miscellaneous Case No. 2052 of 2000 on 5-6-2000 has not been denied by the respondent. It is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances the second application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law as has been held by this Court in Hari Singh Mann v. Harbhajan Singh Bajwa [(2001) 1 SCC 169: 2001 SCC (Cri) 113] and various other judgments. 15. It was submitted that there are various contradictions in the statement of the informant contained in the FIR, her examination-in-chief and cross-examination. An inconsistency chart was also filed by learned counsel for the petitioner. It is impermissible for this Court to look into the inconsistency and hold that the victim’s version is not believable because of the inconsistencies. 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 Trial Court or the High Court should not entertain the bail application of the accused after the commencement of the trial and grant bail because of some discrepancy in the testimony. 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 13 Neutral Citation No. ( 2025:HHC:20106 ) 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 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 if 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.” 16. Similarly, it was held by this Court in Suraj Singh v. State of H.P., 2022 SCC OnLine HP 268 that the Court exercising bail jurisdiction cannot appreciate the contradictions in the evidence. It was observed: 10. Petitioner has placed reliance on the statements of witnesses already recorded by the learned Special Judge, in support of his argument to the effect that, from perusal of these statements, reasonable grounds can be entertained for concluding prima facie innocence of the petitioner. The arguments raised on behalf of the petitioner deserve to be rejected for the reason that this Court, while dealing with 14 Neutral Citation No. ( 2025:HHC:20106 ) the bail application, will not appreciate the evidence being recorded during the trial. Undisputedly, only some of the witnesses out of the entire list of witnesses relied upon by the prosecution have been examined. In these circumstances, it is not prudent to form any opinion as to the innocence or guilt of the petitioner on the basis of such partial evidence. 17. Therefore, the submission that there are inconsistencies in the FIR, examination-in-chief and cross- examination, which would entitle the petitioner to bail, cannot be accepted at this stage. 18. It was submitted that there is a delay in the progress of the trial. The petitioner mentioned in his petition that one witness was examined, whereas the status report mentions that 21 witnesses have been examined. The matter was listed on 18, 19 and 20th of June, 2025, on three consecutive dates. The copies of the order sheets have not been filed to demonstrate that the delay is not attributable to the petitioner. Therefore, the bail cannot be granted on the ground that the right to a speedy trial of the petitioner is being violated. 19. No other point was urged. 20. In view of the above, the present petition fails, and it is dismissed. 15 Neutral Citation No. ( 2025:HHC:20106 ) 21. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 27th June, 2023 (saurav pathania)