2025:HHC:3761 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr.MP(M) No.61 of 2025 Reserved on : 25.02.2025 Decided on : 28.02.2025 Ganesh …Applicant Versus State of Himachal Pradesh …Respondent Coram The Hon’ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the applicant : Mr. Karan Kapoor, Advocate. For the respondent : Mr. Tejasvi Sharma, Mr. Mohinder Zharaick and Mr. H.S. Rawat, Additional Advocates General with Mr. Rohit Sharma, Deputy Advocate General. Virender Singh, Judge Applicant-Ganesh has filed the present application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), with a prayer to release him on bail, during the pendency of the trial, in case FIR No.65 of 2023, dated 06.08.2023, registered under Section 376 of the Indian Penal Code, 1860 (hereinafter referred to as the ‘IPC’), and Section 6 of 1 Whether Reporters of local papers may be allowed to see the judgment? Yes. 2 2025:HHC:3761 the Protection of Children from Sexual Offences Act (hereinafter referred to as the ‘POCSO Act’), with Police Station Tissa, District Chamba, H.P. 2. According to the applicant, he is innocent person and has falsely been implicated, in the present case. 3. As per the applicant, investigation, in the present case, is complete and he is in judicial custody from the date of his arrest. 4. Inordinate delay in conclusion of trial against the applicant has also been put forward as one of the grounds to seek the relief of bail, as, according to the applicant, out of total 34 prosecution witnesses, prosecution could only examine 17 prosecution witnesses so far. These facts have been highlighted to show that in near future, the chances of conclusion of trial against the applicant are not so bright. 5. The applicant has also put forward the plea that the police, in this case, has wrongly added the provisions of the POCSO Act, as, the victim does not fall within the definition of ‘child’, as defined, under the POCSO Act. 3 2025:HHC:3761 6. Apart from this, evidence, so recorded by the learned trial Court, has also been highlighted to seek the relief of bail. 7. Mr. Karan Kapoor, learned counsel, appearing for the applicant, has given certain undertakings, on behalf of the applicant, for which, the applicant is ready to abide by, in case, ordered to be released, on bail, during the pendency of the trial. 8. On the basis of the above facts, a prayer has been made to allow the application. 9. When, put to notice, the police has filed the status report disclosing therein, that on 06.08.2023, child victim, aged about 16 years, appeared before the police of Police Station Tissa, along with her maternal uncle (Mama) and aunt (Masi) and made a statement, under Section 154 of Code of Criminal Procedure (hereinafter referred to as the ‘CrPC’), mentioning therein that she has studied up to Class V and when, she was about 1-2 months, her parents handed over her to her maternal grandparents, who had brought her up. 10. As per the further statement of the child victim, on 05.08.2023, at about 03:00 pm, when she had gone out 4 2025:HHC:3761 to graze the cattle, then, at about 03:30 pm, applicant- Ganesh also came there, who forcibly caught her and raped her. According to her, this incident has also been witnessed by her maternal aunt (Masi). Child victim has also alleged that 5-6 months ago, from the date, when applicant-Ganesh met with her in a shop, situated at Village Kaunda, he had started following her. 11. According to the child victim, she was also raped by the applicant on 31.07.2023 and he had raped her on four occasions. Due to the fear of applicant, the child victim could not disclose this fact to her maternal grandparents. 12. On the basis of above facts, police registered the FIR in question and criminal machinery swung into motion. 13. The child victim was sent to CHC (name withheld) for medico legal examination. Thereafter, the applicant was associated in the investigation and was arrested on 07.08.2023. 14. After completion of the investigation, police has submitted the chargesheet before the competent Court of 5 2025:HHC:3761 law, upon which, the competent Court of law has taken the cognizance. 15. It has been mentioned in the status report that there are total 28 prosecution witnesses, out of which, 17 prosecution witnesses have already been examined and the case is stated to be fixed for 11.03.2025 for recording the evidence of PWs, mentioned at Sr. No.22 and 23, in the challan. 16. On the basis of above facts, a prayer has been made to dismiss the application. 17. First of all, so far as the arguments of learned counsel for the applicant that the prosecution witnesses, which have been examined, before the learned trial Court, have not supported the case of the prosecution, are concerned, it is the sole prerogative of the learned trial Court to consider the evidence and the powers of the learned trial Court to consider the evidence, so adduced, cannot be usurped by this Court, while deciding the question of bail. 18. In the present case, the material witnesses have already been examined and the chances of conclusion of trial against the applicant, in near future, do not appear to 6 2025:HHC:3761 be so bright, as, in this case, there are total 34 prosecution witnesses, out of which, only 17 prosecution witnesses have been examined, till date. 19. Although, in the status report, it has been mentioned that there are total 28 prosecution witnesses, out of which, 17 prosecution witnesses have been examined, but, during the course of arguments, it has fairly been conceded by the learned Additional Advocate General that there are total 34 prosecution witnesses, out of which, 17 prosecution witnesses have already been examined. 20. Considering the fact that the witnesses are being summoned in piecemeal, this Court is of the view that there is substance in the arguments of the learned counsel for the applicant that chances of conclusion of trial against the applicant are not so bright. 21. Moreover, the applicant cannot be kept in the judicial custody, that too, for the indefinite period, as a matter of punishment, as, pre-trial punishment is prohibited, under the law. 22. Keeping in view the age of the applicant, which has been mentioned in the status report as 21 years, this 7 2025:HHC:3761 Court is of the view that the applicant is able to make out a case for his release. 23. Considering all these facts, this Court is of the view that the present bail application is liable to be allowed and is accordingly allowed. 24. Consequently, the applicant is ordered to be released on bail in case FIR No.65 of 2023, dated 06.08.2023, registered under Section 376 of the IPC and Section 6 of the POCSO Act, with Police Station Tissa, District Chamba, H.P., on his furnishing personal bonds, in the sum of ₹50,000/-, with one surety of the like amount, to the satisfaction of the learned trial Court. 25. This order, however, shall be subject to the following conditions: a) The applicant 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; b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and 8 2025:HHC:3761 d) The applicant shall not leave the territory of India without the prior permission of the Court. 26. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail application. 27. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found to be violated by the applicant. 28. The Registry is directed to forward a soft copy of the bail order to the Superintendent of District Jail, Chamba, Himachal Pradesh, through e-mail, with a direction to enter the date of grant of bail in the e-prison software. 29. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of District Jail, Chamba, Himachal Pradesh, is directed to inform this fact to the Secretary, DLSA, Chamba. The Superintendent of District Jail, Chamba, Himachal Pradesh, is further directed that if the applicant fails to furnish the bail bonds, as per the order 9 2025:HHC:3761 passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court. ( Virender Singh ) Judge February 28, 2025 (Gaurav Thakur) Digitally signed by RAJNI Date: 2025.02.28 16:35:53 IST