2025:HHC:32283 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 2221 of 2025 Reserved on: 9.9.2025 Date of Decision: 18.9.2025. Vinay Jishtu ...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. Piyush Verma, Senior Advocate, with Mr. Anuj Bali, Advocate. For the Respondent : Mr. Ajit Sharma, Deputy Advocate General, with ASI Sharmila, FMPS, BCS. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking pre-arrest bail in FIR No. 22 of 2025, dated 4.9.2025, registered at Women Police Station Shimla, District Shimla, H.P., for the commission of offences punishable under Section 64(2) (m) of the Bharatiya Nyaya Sanhita (BNS), 2023 and Section 6 of Protection of Children from Sexual Offences Act (POCSO). 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:32283 2. It has been asserted that the petitioner is a doctor by profession. He learned from reliable sources that the police had registered FIR No. 22 of 2025 against him. The petitioner was falsely implicated. The victim’s parents also know that the allegations against the petitioner are false. The informant was visiting IGMC for the treatment of her ailing father for 9-10 months. She developed an acquaintance with the petitioner. The victim learned that the petitioner’s relationship with his wife was not cordial. The victim proposed the petitioner to marry her but the petitioner declined the offer and she made a false complaint against him. The police have completed the investigation, and the custodial interrogation of the petitioner is not required. The petitioner would abide by the terms and conditions which the Court may impose. Hence, it was prayed that the present petition be allowed and the petitioner be released on pre-arrest bail. 3. The petition is opposed by filing a status report asserting that the victim made a complaint to the Police stating that she had met the petitioner on 29.10.2024 at Indira Gandhi Medical College and Hospital (IGMCH), out-patient department (OPD). He developed intimacy with the informant and remained in physical relations with her till 26.8.2025 from 11.12.2024. She 3 2025:HHC:32283 had attained the age of 17 years on 11.12.2024. The police registered the FIR and investigated the matter. The victim refused to undergo a medical examination. The School Leaving Certificate shows that the victim was born on 4.5.2007. The victim was a minor on 11.12.2024, when the petitioner had developed physical relations with her. The victim produced her mobile phone, which was seized by the police. The petitioner’s Aadhar Card and abstract of entries from the hotel regarding the name of the petitioner and the victim were also seized by the police. The victim identified the place where she was raped. The police prepared the site plan. The articles are being sent to the FSL. The petitioner would abscond and would intimidate the witnesses in case of his release on bail. The petitioner’s custodial interrogation is necessary. Hence, it was prayed that the present petition be dismissed. 4. I have heard Mr. Peeyush Verma, learned Senior Counsel, assisted by Mr. Anuj Bali, learned counsel for the petitioner, and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State. 4 2025:HHC:32283 5. Mr. Peeyush Verma, learned Senior Counsel for the petitioner, submitted that the victim had attained the age of 17 years as per her version. She remained in a physical relationship with the petitioner even after attaining majority. She refused to undergo a medical examination, and there is no corroboration of her testimony. Her conduct casts doubt on her version. Therefore, he prayed that the present petition be allowed and the petitioner be released on pre-arrest bail. He relied upon the judgments titled Dyanoba Mugaji Karhale @ Mauli Maharaj Mudekar Vs. State of Maharashtra and another, Cr. Appeal No.6985 of 2025, decided on 4.9.2025, Shaitan Singh @ Sultan Singh Vs. State of Rajasthan and another, IA Nos. 182768 and 182766 of 2024, decided on 10.12.2024, Prawin Kumar @ Praveen Kumar Vs. State of Bihar, SLP (Crl.) No. 11758 of 2022, decided on 19.4.2023, XXX Vs. State of H.P. Cr.MP(M) No. 126 of 2025, 2025:HHC:3553, and Rohit Sharma Vs. State of H.P. Cr.MP(M) No. 2001 of 2020, decided on 11.11.2020 in support of his submission. 6. Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent-State, submitted that the petitioner’s custodial interrogation is necessary for the proper investigation. The 5 2025:HHC:32283 petitioner would intimidate the victim in case of his release on bail. 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 was laid down by the Hon’ble Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24: (2019) 3 SCC (Cri) 509: 2019 SCC OnLine SC 1143 that the power of pre- arrest bail is extraordinary and should be exercised sparingly. It was observed: “69. Ordinarily, an arrest is a part of the procedure of the investigation to secure not only the presence of the accused but also several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power, and the same has to be exercised sparingly. The privilege of pre- arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice, and other factors to decide whether it is a fit case for the grant of anticipatory bail. Grant of anticipatory bail to some extent interferes with the sphere of investigation of an offence, and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule, and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.” 6 2025:HHC:32283 9. This position was reiterated in Srikant Upadhyay v. State of Bihar, 2024 SCC OnLine SC 282, wherein it was held: “25. We have already held that the power to grant anticipatory bail is extraordinary. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of the imagination, be said that anticipatory bail is the rule. It cannot be the rule, and the question of its grant should be left to the cautious and judicious discretion of the Court, depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious, as the grant of interim protection or protection to the accused in serious cases may lead to a miscarriage of justice and may hamper the investigation to a great extent, as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest, and we say that such orders shall be passed in eminently fit cases.” 10. It was held in Pratibha Manchanda v. State of Haryana, (2023) 8 SCC 181: 2023 SCC OnLine SC 785 that the Courts should balance individual rights, public interest and fair investigation while considering an application for pre-arrest bail. It was observed: “21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tightrope we must walk 7 2025:HHC:32283 lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each case becomes crucial to ensure a just outcome.” 11. It was held in Devinder Kumar Bansal v. State of Punjab, (2025) 4 SCC 493: 2025 SCC OnLine SC 488 that pre-arrest bail can be granted in exceptional circumstances where the Court is of the view that the petitioner was falsely implicated in the case, and the presumption of innocence cannot be a reason to grant bail. It was observed at page 501: “21. The parameters for the grant of anticipatory bail in a serious offence like corruption are required to be satisfied. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has been falsely implicated in the crime or the allegations are politically motivated or are frivolous. So far as the case at hand is concerned, it cannot be said that any exceptional circumstances have been made out by the petitioner-accused for the grant of anticipatory bail, and there is no frivolity in the prosecution. 22. In the aforesaid context, we may refer to a pronouncement in CBI v. V. Vijay Sai Reddy [CBI v. V. Vijay Sai Reddy, (2013) 7 SCC 452: (2013) 3 SCC (Cri) 563], wherein this Court expressed thus: (SCC p. 465, para 34) “34. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, 8 2025:HHC:32283 circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond a reasonable doubt.” (emphasis in original and supplied) 23. The presumption of innocence, by itself, cannot be the sole consideration for the grant of anticipatory bail. The presumption of innocence is one of the considerations which the court should keep in mind while considering the plea for anticipatory bail. The salutary rule is to balance the cause of the accused and the cause of public justice. Over solicitous homage to the accused's liberty can, sometimes, defeat the cause of public justice. 12. The present petition is to be decided as per the parameters laid down by the Hon’ble Supreme Court. 13. The police produced the case diary before this Court, which shows that the victim mentioned the various incidents which occurred between her and the petitioner in detail on oath before the learned Magistrate. 9 2025:HHC:32283 14. Learned Senior Counsel for the petitioner submitted that the victim had not undergone medical examination, and her version is highly doubtful. This submission is not acceptable. The police seized the entries from the hotel regarding the stay of the petitioner and the victim. The police also seized the petitioner’s Aadhaar card from the hotel. The petitioner has not furnished any explanation for them. The entries and the petitioner’s Aadhar card prima facie corroborate the victim’s version that the petitioner had taken her to the hotel. 15. It was submitted that the victim remained silent for about one year. This will not help the petitioner. The victim was born on 4.5.2007, and she was a minor on the date of the incident. Therefore, even if her silence suggested her consent, it will not wipe out the offence punishable under Section 6 of the POCSO Act, because being a minor, the victim was incapable of consent. 16. It was submitted that the victim came to know about the differences between the petitioner and his wife. She proposed marriage to the petitioner. The petitioner declined to marry her, and she filed a false complaint. This submission is only stated to be rejected. No reason has been assigned as to why the victim 10 2025:HHC:32283 would pick up the petitioner to marry her. The material collected by the police ‘prima facie’ shows the petitioner’s involvement in the commission of crime. 17. The judgments cited supra do not relate to the offence punishable under Section 6 of the POCSO Act- a specific Act enacted to protect the minor; therefore, these judgments will not help the petitioner. The judgment in Mohit Sharma (supra) dealt with regular bail and not pre-arrest bail, and does not apply to the present case, where the investigation is at a preliminary stage. Thus, no advantage can be derived from the cited judgments. 18. The petitioner is a doctor, and the victim was a patient. The petitioner violated the sacred relationship between a patient and the Doctor by having physical relations with the victim. Such an act cannot be viewed lightly. It was laid down by the Hon’ble Supreme Court in Ms X versus State of Maharashtra and another, 2023 STPL 3386 SC, [2023(2) Crimes 66 (SC)] that pre- arrest bail should not be granted in an offence punishable under Section 376 of IPC. It was observed: “22. Surprisingly, none of the aforesaid aspects have been touched upon in both the impugned orders. The nature and 11 2025:HHC:32283 gravity of the alleged offence have been disregarded. So has the financial stature, position and standing of the accused vis-a-vis the appellant/prosecutrix been ignored? The High Court has granted anticipatory bail in favour of the respondent No. 2/accused in a brief order of three paragraphs, having been swayed by the 'star variations in the narration of the prosecutrix' implying thereby that what was originally recorded in the FIR, did not make out an offence of rape, as defined in Section 375 IPC, which is an erroneous assumption. Even if the first Supplementary statement of the appellant/prosecutrix recorded in the evening hours of 6th August 2022, the date on which the FIR had been registered against the respondent No.2/accused in the first half of the same day, her second Supplementary statement recorded on 6th September 2022 and the Medico-Legal Report of the doctor who had examined the appellant/prosecutrix on 8th August 2022, are kept aside for a moment, we find that there was still sufficient material in the FIR that would prima facie attract the provision of Section 376, IPC. In our opinion, these factors ought to have dissuaded the High Court from exercising its discretion in favour of respondent No.2/accused for granting him anticipatory bail. 19. The police asserted that the petitioner’s custody is required for further investigation. This plea has to be accepted as correct. The investigation is at its initial stage, and the custodial interrogation of the petitioner would be necessary for the proper investigation. It was laid down by the Hon’ble Supreme Court in State Versus Anil Sharma (1997) 7 SCC 187 that where custodial interrogation is required, pre-arrest bail should not be granted. It was observed: 12 2025:HHC:32283 “6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well-ensconced with a favourable order under Section 438 of the Code. In a case like this, effective interrogation of a suspected person is of tremendous advantage in disintering much useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often, interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offender” 20. A similar view was taken by the Delhi High Court in Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032, wherein it was observed: - “13. One of the significant factors in determining this question would be the need for custodial interrogation. Without a doubt, custodial interrogation is more effective to question a suspect. The cocoon of protection afforded by a bail order insulates the suspect, and he could thwart interrogation, reducing it to futile rituals. But it must also be kept in mind that while interrogation of a suspect is one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.” 21. It was held in P Chidambaram (supra) that the grant of pre-arrest bail may hamper the investigations. It was observed: 13 2025:HHC:32283 “83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful information, and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences, would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.” 22. No other point was urged. 23. In view of the above, the present petition fails and the same is dismissed. The observations made heretofore shall remain confined to the disposal of the petition and will have no bearing whatsoever on the merits of the case. (Rakesh Kainthla) Judge 18th September, 2025 (Chander)