2025:HHC:6459 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. CrMP(M) No. 44 of 2024 Decided on: 18.03.2025 ________________________________________________________ Himanshu ………..Petitioner Versus State of Himachal Pradesh ….Respondent ________________________________________________________ Coram: Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? 1 Yes. For the Petitioner : Mr. Rakesh Chaudhary and Mr. Panku Chaudhary, Advocates. For the Respondent : Mr. Anup Rattan, Advocate General, Mr. Rajan Kahol, Mr. Vishal Panwar & Mr. B.C. Verma, Additional Advocate Generals, with Mr. Ravi Chauhan, Deputy Advocate General, for respondents-State. ________________________________________________________ Sandeep Sharma, Judge (oral): Bail petitioner namely Himanshu, who is behind bars since 06.04.2024, has approached this court in the instant proceedings filed under Section 483 of Bharatiya Nagrik Suraksha Sanhita, 2023 (hereinafter, ‘BNSS’) for grant of regular bail in case FIR No. 26 of 2024, dated 06.04.2024 under Sections 363, 354, 354-A, 506, 201 & 34 of IPC and Section 8 of Protection of Children from Sexual Offences Act, registered at Police Station Shillai, District Sirmaur, Himachal Pradesh. 2. Pursuant to directions issued by this Court, respondent/State has filed status report, perusal whereof reveals that on 06.04.2024, victim-prosecutrix (name withheld to protect her 1 Whether the reporters of the local papers may be allowed to see the judgment? identity), aged 15 years, got her statement recorded at Police Station Shillai, District Sirmaur, Himachal Pradesh, alleging therein that on 05.04.2024 at 05:00 p.m., while she had gone towards ITI for throwing the garbage, present bail-petitioner Himanshu, son of Naresh, came on the spot with his two friends, driving a vehicle. Victim-prosecutrix alleged that all above persons told her that her aunt (bua) has called her at Suinal. She alleged that though she told present bail-petitioner as well as other two persons that none of her aunts resides at Village Suinal, but yet present bail-petitioner forcefully made her to sit in the vehicle. She alleged that while she was sitting in the car, two boys sitting in the rear seat closed her eyes with a black cloth and gagged her mouth. She alleged that after some time, she was dropped near Suinal temple and the cloth covering her eyes was also removed. She alleged that though she repeatedly requested the present bail- petitioner and other two persons to drop her at her native place, but they refused on the pretext that there was no petrol in the vehicle. She alleged that bail-petitioner and other two persons namely Sandeep and Yashpal started behaving indecently and she saved herself by running from the spot. She alleged that there was a hotel nearby, whose owner subsequently called her parents on the spot. In the afore background, FIR, detailed hereinabove, came to be lodged against the bail- petitioner as well as other co-accused namely Sandeep and Yashpal, who have already been enlarged on bail. Since investigation is complete and nothing remains to be recovered from the bail petitioner, coupled with the fact that bail petitioner is behind the bars for more 2 than eleven months, prayer has been made on his behalf for grant of regular bail. 3. While fairly acknowledging factum with regard to completion of investigation, Mr. Vishal Panwar, learned Additional Advocate General, states that though nothing remains to be recovered from the bail-petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency and as such, his prayer for grant of regular bail deserves outright rejection. Mr. Panwar, states that as per statement given by the victim-prosecutrix to the police as well as Judicial Magistrate, it was the petitioner, who forcibly made her to sit in his car and thereafter, he also behaved indecently. Mr. Panwar, further states that since charge has already been framed and learned Court below has fixed the matter for recording the statements of remaining prosecution witnesses, prayer made on behalf of the petitioner for grant of regular bail on account of inordinate delay in conclusion of trial cannot be accepted. Lastly, Mr. Panwar, states that since statement of victim-prosecutrix is yet to be recorded, it is not in the interest of justice to enlarge petitioner on bail because in that event, he may not only flee from justice, but may also cause harm to the victim-prosecutrix. 4. Having heard learned counsel for the parties and perused material available on record, this Court finds that prior to filing of the petition at hand, petitioner had approached learned trial Court for grant of bail, but such prayer of him at that time was rejected on the ground that charge sheet is yet to be filed and as such, it is difficult to 3 believe that petitioner has been falsely implicated. At that stage, learned Court below, taking note of statement made by victim- prosecutrix to the police as well as Judicial Magistrate, proceeded to conclude that petitioner has committed heinous crime and as such, he is not entitled to be enlarged on bail at this stage. Other co-accused, namely Sandeep and Yashpal stand enlarged on bail on the ground that they had not forcibly made victim-prosecutrix to sit in the car, rather it was the bail-petitioner, who not only made victim-prosecutrix to sit in the car, but also behaved indecently with her. 5. Though having perused status report, this Court is not persuaded to agree with the submission of Mr. Rakesh Chaudhary and Mr. Panku Chaudhary, learned counsels for the petitioner that the bail petitioner has been falsely implicated because there is ample material on record suggestive of the fact that the bail-petitioner in connivance with other co-accused, not only kidnapped victim- prosecutrix, but also behaved indecently, however, having taken note of the fact that bail-petitioner is behind bars for almost one year and till date, prosecution evidence has not commenced, coupled with the fact that other two co-accused already stand enlarged on bail, prayer made on behalf of the petitioner for grant of bail deserves to be considered. 6. Moreover, this Court finds from reading of the statement of the victim-prosecutrix recorded under Section 164 Cr.P.C that though at first instance it was the bail-petitioner, who allegedly made her to sit in the car, but if the entire statement of the victim- prosecutrix recorded under Section 164 Cr.P.C is perused, it clearly 4 emerges that all the accused named in the FIR had equal participation in the commission of offence. If it is so, petitioner also deserves to be enlarged on bail as has been done in the case of other two co- accused. Further perusal of statements of the victim-prosecutrix given to the Police as well as Judicial Magistrate clearly reveals that she had prior acquaintance with the bail-petitioner, otherwise there was no occasion for her to talk to him. There is nothing on record to suggest that effort, if any, was made by the victim-prosecutrix to raise hue and cry, when she was forcibly put in a vehicle by the present bail- petitioner. As per own case of the victim-prosecutrix, she was left alone near temple at Suinal from there she went to the owner of the hotel, who subsequently called her parents on the spot. No doubt, petitioner is accused of a heinous crime, but guilt, if any, of him is yet to be established on record by leading cogent and convincing evidence. 7. Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law. Whether the bail-petitioner has made victim-prosecutrix to sit in his car forcefully is a question, which needs to be decided by learned Court below on the basis of totality of evidence led on record by the prosecution. True it is that statement of the victim- prosecutrix cannot be ignored, but having noticed certain discrepancies/inconsistencies in the statement of victim- prosecutrix, coupled with the fact that two other co-accused 5 already stand enlarged on bail, this Court is persuaded to enlarge petitioner on bail at this stage, who has already suffered for more than eleven months. Since it took almost a year for prosecution to file charge sheet, this Court has reason to presume and believe that considerable time is likely to be consumed in conclusion of trial. 8. At this stage, this Court finds it necessary to take note of Section 35 of POCSO Act, which clearly provides that the evidence of the child has to be recorded within thirty days and the trial is to be completed within one year from the date of taking cognizance of the offence by the Special Court. As per the status report, the charge sheet was filed on 10.06.2024, if it is so, trial, in terms of Section 35 of POCSO Act, was required to be concluded before 10.12.2024 in terms of Section 35 of POCSO Act. In the instant case, charge was framed on 03.03.2025. After framing of charge, learned Court below has now fixed the matter for recording the statements of prosecution witnesses. 9. Since in the case at hand guilt, if any, of the bail petitioner is yet to be established by the prosecution, as such, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when, nothing remains to be recovered from the bail-petitioner. Since prosecution witnesses are yet to be examined, this Court has 6 reason to presume and believe that considerable time is likely to be consumed in conclusion of trial and in case bail petitioner is left to incarcerate in jail for an indefinite period during trial, that would not only amount to pre-trial conviction, but would also be violative of Article 21 of the Constitution of India. Apprehension expressed by learned Additional Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met by putting the bail petitioner to stringent conditions. 10. Hon’ble Supreme Court in Alakh Alok Srivastava v. Union of India, (2018) 17 SCC 291: (2019) 4 SCC (Cri) 184: 2018 SCC OnLine SC 478 observed that the trial of cases registered under POCSO Act be conducted expeditiously. Hon'ble Apex Court observed as under: “25.3. The instructions should be issued to the Special Courts to fast-track the cases by not granting unnecessary adjournments and following the procedure laid down in the POCSO Act and thus complete the trial in a time-bound manner or within a specific time- frame under the Act.” 11. From the facts narrated herein above, it is clear that learned trial Court has not been able to conclude trial within the time provided under the Act and trial is not likely to be concluded in near future. 7 12. In Mohd. Muslim v. State (NCT of Delhi), 2023 SCC OnLine SC 352, Hon'ble Apex Court held the right to speedy trial to be constitutional right of an accused. The right of bail is curtailed on the premise that the trial would be concluded expeditiously. Hon'ble Apex Court held as under: “13. When provisions of law curtail the right of an accused to secure bail, and correspondingly fetter judicial discretion (like Section 37 of the NDPS Act, in the present case), this court has upheld them for conflating two competing values, i.e., the right of the accused to enjoy freedom, based on the presumption of innocence, and societal interest - as observed in Vaman Narain Ghiya v. State of Rajasthan, [2008] 17 SCR 369: (2009) 2 SCC 281 ('the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal....'). They are, at the same time, upheld on the condition that the trial is concluded expeditiously. The Constitution Bench in Kartar Singh v. State of Punjab, [1994] 2 SCR 375: (1994) 3 SCC 569 made observations to this effect. In Shaheen Welfare Association v. Union of India, [1996] 2 SCR 1123: (1996) 2 SCC 616 again, this court expressed the same sentiment, namely that when stringent provisions are enacted, curtailing the provisions of bail, and restricting judicial discretion, it is on the basis that investigation and trials would be concluded swiftly. The court said that Parliamentary intervention is based on: a conscious decision has been taken by the legislature to sacrifice to some extent, the personal liberty of an under trial accused for the sake of protecting the community and the nation against terrorist and disruptive activities or other activities harmful to society, it is all the more necessary that investigation 8 of such crimes is done efficiently and an adequate number of Designated Courts are set up to bring to book persons accused of such serious crimes. This is the only way in which society can be protected against harmful activities. This would also ensure that persons ultimately found innocent are not unnecessarily kept in jail for long periods.” 13. The Court highlighted the effects of pre-trial detention and the importance of speedy trial as under: “22. Before parting, it would be important to reflect that laws which impose stringent conditions for the grant of bail, may be necessary in the public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling. According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as of 31st December 2021, over 5,54,034 prisoners were lodged in jails against a total capacity of 4,25,069 lakhs in the country[National Crime Records Bureau, Prison Statistics in India https://ncrb. gov. in/sites/default/files/P SI-202 1/Executive ncrb Summary-2021.pdf]. Of these 122,852 were convicts; the rest 4,27,165 were undertrials. 23. The danger of unjust imprisonment, is that inmates are at risk of 'prisonisation' a term described by the Kerala High Court in A Convict Prisoner v. State, 1993 Cri LJ 3242 as a radical transformation ' whereby the prisoner: 'loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from 7 loss of freedom, status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self-perception changes. ' 9 24. There is a further danger of the prisoner turning to crime, 'as crime not only turns admirable but the more professional the crime, more honour is paid to the criminal'[Working Papers - Group on Prisons & Borstals - 1966 U.K.] (also see Donald Clemmer's 'The Prison Community' published in 1940[Donald Clemmer, The Prison Community (1968) Holt, Rinehart & Winston, which is referred to in Tomasz Sobecki, 'Donald Clemmer's Concept of Prisonisation', available at: https://www.tkp.edu.pl/wpcontent/uploads/2020/12/Sobecki_s klad.pdf (accessed on 23rd March 2023).]). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from society. The courts, therefore, have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily.” 14. In Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616: 1996 SCC (Cri) 366 Hon'ble Apex Court held that a person cannot be kept behind the bars when there is no prospect of trial being concluded expeditiously. It was observed at page 621: “8. It is in this context that it has become necessary to grant some relief to those persons who have been deprived of their personal liberty for a considerable length of time without any prospect of the trial being concluded in the near future. Undoubtedly, the safety of the community and 8 the nation needs to be safeguarded looking to the nature of the offences these undertrials have been charged with. But the ultimate justification for such deprivation of liberty pending trial can only be their being found guilty of the offences for which they have been charged. If such a finding is not likely to be 10 arrived at within a reasonable time some relief becomes necessary.” 15. Similarly, it was laid down by the Hon’ble Supreme Court in Jagjeet Singh v. Ashish Mishra, (2022) 9 SCC 321: (2022) 3 SCC (Cri) 560: 2022 SCC OnLine SC 453 that no accused can be subjected to unending detention pending trial. It was observed at page 335 as under: “40. Having held so, we cannot be oblivious to what has been urged on behalf of the respondent-accused that cancellation of bail by this Court is likely to be construed as an indefinite foreclosure of his right to seek bail. It is not necessary to dwell upon the wealth of case law which, regardless of the stringent provisions in a penal law or the gravity of the offence, has time and again recognised the legitimacy of seeking liberty from incarceration. To put it differently, no accused can be subjected to unending detention pending trial, especially when the law presumes him to be innocent until proven guilty. Even where statutory provisions expressly bar the grant of bail, such as in cases under the Unlawful Activities (Prevention) Act, 1967, this Court has expressly ruled that after a reasonably long period of incarceration, or for any other valid reason, such stringent provisions will melt down, and cannot be measured over and above the right of liberty guaranteed under Article 21 of the Constitution (see Union of India v. K.A. Najeeb [Union of India v. K.A. Najeeb, (2021) 3 SCC 713, paras 15 and 17] ).” 16. Hon’ble Supreme Court recently in Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Anr. Criminal Appeal No. 2787 of 2024 decided on 03.07.2024 observed that the right to speedy trial of the offenders facing criminal charges is an important facet of 11 Article 21 of the Constitution of India and inordinate delay in the conclusion of the trial entitles the accused to grant of bail. Hon'ble Apex Court held as under: “12 Long back, in Hussainara Khatoon v. Home Secy., the State of Bihar reported in (1980) 1 SCC 81, this court had declared that the right to speedy trial of offenders facing criminal charges is “implicit in the broad sweep and content of Article 21 as interpreted by this Court”. Remarking that a valid procedure under Article 21 is one which contains a procedure that is “reasonable, fair and just” it was held that: “Now obviously procedure prescribed by law for depriving a person of liberty cannot be “reasonable, fair or just” unless that procedure ensures a speedy trial for determination of the guilt of such person. No procedure which does not ensure a reasonably quick trial can be regarded as “reasonable, fair or just” and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21. The question which would, however, arise is as to what would be the consequence if a person accused of an offence is denied a speedy trial and is sought to be deprived of his liberty by imprisonment as a result of a long delayed trial in violation of his fundamental right under Article 21.” 13 The aforesaid observations have resonated, time and again, in several judgments, such as Kadra Pahadiya & Ors. v. State of Bihar reported in (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S. Nayak reported in (1992) 1 SCC 225. In the latter, the court re-emphasized the right to speedy trial and further held that an accused, facing prolonged trial, has no option: “The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case may be, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands a speedy trial and yet he is not given one, may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right to a speedy trial on the ground that he did not ask for or insist upon a speedy trial.” 12 17. Hon'ble Apex Court in Javed Gulam Nabi Shaikh supra has observed that if the State or the prosecuting agency does not have wherewithal to protect fundamental right of accused to speedy trial, as enshrined under Art. 21 of the Constitution of India, it should not oppose plea for bail on the ground that offence allegedly committed is heinous. Hon'ble Apex Court referred to its judgments in Union of India v. K.A. Najeeb, (2021) 3 SCC 713, Satender Kumar Antil v. Central Bureau of Investigation, (2022) 10 SCC 51. 18. In Manish Sisodia v. Enforcement Directorate, 2024 SCC OnLine SC 1920, placing reliance upon Javed Gulab Nabi Shaikh reiterated the right of an accused to speedy trial. In Jalaluddin Khan v. Union of India, 2024 SCC OnLine SC 1945, Hon'ble Apex Court enlarged the accused on bail, on the ground of inordinate delay. In Prem Prakash v. Union of India through the Directorate of Enforcement, Petition for Special Leave to Appeal (Crl.) No. 5416 of 2024, Hon'ble Apex Court proceeded to enlarge the accused on bai, on the ground of delay in conclusion of trial, while relying upon Ramkripal Meena v. Directorate of Enforcement, SLP (Crl.) No. 3205 of 2024 dated 30.7.2024,Javed Gulam Nabi Shaikh supra, Manish Sisodia. 19. In the aforesaid judgments, Hon'ble Apex Court having taken note of all judgments passed in recent times, categorically held that bail is rule and jail is an exception. If all the judgments taken note herein above are read in conjunction, Hon'ble Apex Court has categorically held that court, while considering prayer for grant of bail, may not be impressed with arguments advanced by the prosecution, 13 that charge against the person seeking bail is serious, but in case, court finds that on account of inordinate delay in conclusion of trial, fundamental right of speedy trial is being violated, it should proceed to grant bail. No doubt, in the case at hand, charge against the petitioner is serious, but there is no denial to the fact that bail petitioner is languishing in jail for more than eleven months, despite his not being held guilty. 20. In the aforesaid judgment, Hon’ble Apex Court has held that while considering the prayer for grant of bail, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. 21. Consequently, in view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.1.00 Lakh with one surety in the like amount, to the satisfaction of the learned Trial Court, besides the following conditions: (a) He shall make himself available for the purpose of interrogation, if so required and 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; 14 (b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) He shall not leave the territory of India without the prior permission of the Court. 22. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 23. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The petition stands accordingly disposed of. A downloaded copy of this order shall be accepted by the learned trial Court, while accepting the bail bonds from the petitioner and in case, said court intends to ascertain the veracity of the downloaded copy of order presented to it, same may be ascertained from the official website of this Court. (Sandeep Sharma) Judge March 18, 2025 (sunil) 15