2025:HHC:21390 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 1446 of 2025 Reserved on: 30.06.205 Date of Decision: 07.07.2025 Shashi Yadav ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. Rakesh Thakur, Advocate. For the Respondent : Mr. Prashant Sen, Deputy Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in F.I.R. No. 68 of 2025 dated 02.03.2025, registered at Police Station Nalagarh, District Solan H.P. for the commission of offences punishable under Section 75 of the Bharatiya Nyaya Sanhita (BNS), 2023 and Section 12 of the 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:21390 Protection of Children from Sexual Offences Act, 2012 (POCSO Act). 2. It is asserted that the petitioner has been in judicial custody for more than 3½ months. The police have completed the investigation, and no recovery is to be effected from the petitioner. The petitioner would abide by all the terms and conditions which the Court may impose. 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 victim’s father made a complaint to the police, stating that the victim, aged 14 years, was going to the bathroom on 02.03.2025 at 4:00 p.m. The petitioner called her and took her to the bathroom, where he sexually assaulted her by touching her stomach and breasts. The victim’s brother saw her and saved her from the petitioner. The police registered the F.I.R. and conducted the investigation. The police arrested the petitioner on 02.03.2025. The date of birth of the victim shows that she was born on 22.01.2013. The charge sheet has been filed before the 3 2025:HHC:21390 Court, and the matter is now listed on 13.10.2025 for prosecution’s evidence. Hence, the status report. 4. I have heard Mr. Rakesh Thakur, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the respondent-State. 5. Mr. Rakesh Thakur, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The allegations in the F.I.R. are not corroborated by any evidence. The petitioner has been in custody for more than two months. There is a violation of Section 173 of BNNS as no preliminary inquiry was conducted. The police have filed the charge sheet before the learned Trial Court. No fruitful purpose would be served by detaining the petitioner in custody. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. He relied upon the judgment of the Hon’ble Supreme Court in Imran Pratapgadhi v. State of Gujarat, 2025 SCC OnLine SC 678 in support of his submission. 6. Mr. Prashant Sen, learned Deputy Advocate General, submitted that the allegations against the petitioner are serious and cannot be viewed lightly. He molested a minor girl, who was 4 2025:HHC:21390 saved by her brother. The statement of the victim is yet to be recorded, and releasing the petitioner on bail will compromise the fair trial. 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. 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 5 2025:HHC:21390 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] .] 9. 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. 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 6 2025:HHC:21390 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. 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, 7 2025:HHC:21390 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) 10. This position was reiterated in Shabeen Ahmed versus State of U.P., 2025 SCC Online SC 479. 11. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 12. It was laid down by the Hon’ble Supreme Court in Imran Pratpgadhi (supra) that when the commission of cognizable offence is disclosed to the police, it is mandatory to record the substance of the information in a book to be kept by the officer and no further inquiry can be made by the officer. However, when the information related to the commission of a cognisable offence is made punishable for three years but less than seven years, the police officer is empowered to conduct a preliminary inquiry; however, this is a limited inquiry to determine whether, prima facie, case is made out or not. It was observed: 24. Under sub-Section (3) of Section 173 of the BNSS, after holding a preliminary inquiry, if the officer comes to a 8 2025:HHC:21390 conclusion that a prima facie case exists to proceed, he should immediately register an FIR and proceed to investigate. But, if he is of the view that a prima facie case is not made out to proceed, he should immediately inform the first informant/complainant so that he can avail a remedy under sub-Section (4) of Section 173. 25. Before we go into the applicability of sub-Section (3) of Section 173 of the BNSS to the facts of the case, we must deal with sub-Section (1) of Section 173. Take a case where a person approaches an officer-in-charge of a police station, either personally or by electronic communication and alleges that he has seen ‘A’ assaulting ‘X’ with a stick. If the injury caused is simple, it will be an offence punishable under Section 115(2) of the BNS. As per the first Schedule of the BNSS, it is a non-cognizable offence. Therefore, based on such information, an FIR cannot be registered. If grievous hurt is caused, it will be an offence punishable under Section 117(2) of the BNS, which is a cognizable offence. Therefore, the allegations made in the information furnished to an officer-in-charge of a police station must be examined by the officer only with a view to ascertain whether a cognizable offence is made out. Taking the information as correct, the officer has to determine whether it makes out a case of the commission of a cognizable offence. If the allegation makes out a case of a cognizable offence, unless the offence falls in sub- Section (3) of Section 173, it is mandatory to register an FIR. Xxxx 28. Sub-Section (3) of Section 173 of the BNSS confers a discretion on the officer receiving information relating to the commission of a cognizable offence to conduct a preliminary inquiry to ascertain whether a prima facie case exists to proceed. This option is available when the offence alleged is made punishable for 3 years or more but less than 7 years.” 9 2025:HHC:21390 13. In the present case, the allegations in the complaint clearly showed that the petitioner had touched the victim’s stomach and breasts after taking her to a bathroom. Her brother saved her from the petitioner. These allegations, prima facie, constituted a commission of a cognisable offence; therefore, there was no requirement to conduct a preliminary inquiry. Hon’ble Supreme Court held that a discretion had been conferred upon the Police Officer to conduct a preliminary inquiry, but it was not held that failure to conduct a preliminary inquiry would make the proceedings bad. Thus, the cited judgment will not help the petitioner. 14. Perusal of the status report shows that the victim was born on 21.01.2013 and was about 12 years old on the date of the incident. The petitioner took her to the bathroom where he touched her inappropriately, and she was saved by her brother. These facts show that the offences are heinous and cannot be viewed lightly. Further, there is force in the submissions by Mr. Prashant Sen, learned Deputy Advocate General, that the statement of the victim is yet to be recorded and releasing the petitioner on bail can interfere with the fair trial. 10 2025:HHC:21390 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. (Rakesh Kainthla) Judge 07th July, 2025 (ravinder)