Himachal Pradesh High Court
Reserved On : 5Th June vs State Of Himachal Pradesh & Another on 24 June, 2025
Author: Virender Singh
Bench: Virender Singh
2025:HHC:19540
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. : 798 of 2025
Reserved on : 5th June, 2025
Decided on : 24th June, 2025
Sahil Sharma …Applicant
Versus
State of Himachal Pradesh & Another …Respondents
Coram
The Hon’ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes
For the applicant : Applicant in person with Mr. Ashok
Sharma, Senior Advocate, assisted
by Ms. Anubhuti Sharma, Advocate.
For the respondent : Mr. Tejasvi Sharma, Additional
Advocate General, with Mr. Rohit
Sharma, Deputy Advocate General,
assisted by ASI Nikhil Kumar,
Women Police Station, Chamba,
District Chamba.
Respondent No.2, in person with
Ms. Kritika Sharma & Mr. Gaurav
Kumar, Advocates.
Virender Singh, Judge
Applicant Sahil Sharma, apprehending his
arrest, in case FIR No.14 of 2025, dated 05.04.2025,
registered, under Section 376 of the Indian Penal Code
1
Whether Reporters of local papers may be allowed to see the judgment? Yes.
2 2025:HHC:19540
(hereinafter referred to as ‘the IPC‘), and Section 4 of the
Protection of Children from Sexual Offences Act, 2012
(hereinafter referred to as ‘the POCSO Act‘), has filed the
present application, under Section 482 of the Bharatiya
Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as
‘BNSS’), with a prayer to direct the Police/Investigating
Officer of Women Police Station Chamba, District Chamba,
H.P., to release him on bail, in the event of his arrest.
2. The relief, as claimed in the application, has
been sought on the ground that the entire case against the
applicant is false and fabricated.
3. It is the further case of the applicant that the
complainant had developed intimacy with the applicant in
the year 2023, when, he had gone to Chamba, in
connection with health issues of his father.
4. According to the applicant, he is ordinarily
resident of Mumbai and working in a private Company at
Mumbai.
5. It is the case of the applicant that the
complainant met him, for the first time, in the year 2023
and she had disclosed her age as 22 years.
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6. It is the specific case of the applicant that the
so called incident of December, 2021, has been concocted
with an ulterior motive to bring the case within the ambit
of POCSO Act.
7. The applicant has given certain undertakings,
for which, he is ready to abide by, in case, any direction is
issued under Section 482 BNSS to the I.O.,/Police.
8. On the basis of the above facts, a prayer has
been made to allow the application as prayed for.
9. When put to notice, the police has filed the
status report, disclosing therein, that on 05.04.2025, the
complainant, aged about 20 years, appeared before the
police of Women Police Station, Chamba, disclosing
therein, that she is resident of village ‘X’. According to her,
she had developed relationship with applicant Sahil
Sharma.
9.1. Said Sahil Sharma, according to the
complainant, on the pretext of marrying her, had developed
physical relations with her. The relations were firstly made
in the month of December, 2021, in ‘Y’ Hotel, which is
situated near bus stand ‘Z’.
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9.2. According to the complainant, her age at that
time was 17 years, as she has mentioned her date of birth
in the complaint as 7.7.2005.
9.3. It is the further case of the police that according
to the complainant, thereafter, they used to meet each
other oftenly and in the month of March 2024, they again
met in the same Hotel, where the victim had again
discussed with the applicant about their marriage. Again,
on the pretext of marriage, the applicant had developed
physical relations with her.
9.4. As per the status report, on 21.03.2025,
applicant Sahil Sharma and the victim met at Hotel ‘A’ at
Chandigarh. They stayed there from 21 st March 2025 to
27th March, 2025, for seven days, where applicant made
physical relations with her.
9.5. At Chandigarh also, Sahil Sharma, had assured
the complainant to marry her. From 2023, applicant is
stated to have assured her to solemnize marriage. From
the month of August, 2023, the applicant and complainant
were planning to solemnize their marriage on 3.4.2025.
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9.6. On 01.4.2025, the complainant and the
applicant had discussed this issue and applicant had
discussed the matter with the family members of the
victim. However, according to her, on 2.4.2025, his mobile
phone was found to be switched off. Despite best efforts to
contact him, she could not contact him, nor he has made
any call to her. As such, she has prayed that action be
taken against the applicant.
9.7. On the basis of the above facts, the police
registered the FIR, in question and criminal machinery
swung into motion.
10. During investigation, on 5.4.2025, the
complainant was medicolegally examined at Hospital ‘X’
and her statement, as well as, that of her mother was
recorded, under Section 180 of the BNSS. On 7.4.2025,
victim was produced before the Court of learned Judicial
Magistrate First Class, Chamba, where her statement
under Section 183 of the BNSS, was recorded.
11. On 7.4.2025, the complainant had identified
room No.201 of Hotel ‘Y’ and from the spot, bed sheet and
billow cover were taken into possession. Videography and
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photography of the spot was conducted. Statements of the
witnesses under Section 180 of BNSS were recorded.
12. Lastly, a stand has been taken that in the year
2021, when the applicant had allegedly made physical
relations with the victim on the pretext of marriage, at that
time, she was about 17 years and 4 months. As such, a
prayer has been made to dismiss the application.
13. On the basis of the stand so taken, interim
protection was given to the applicant and the matter was
adjourned for 30.04.2025.
14. On 30.04.2025, the police filed the
supplementary status report, according to which, as per
the stand taken by the victim in her statement under
Section 180 of BNSS, applicant had developed physical
relations with her at Hotel ‘Z’ at Chandigarh. As such, on
13.04.2025, the victim, in the custody of her mother had
identified the said place at Chandigarh.
15. A photocopy of the relevant register was
obtained, along with photocopies of the Aadhar Card,
submitted by the victim and applicant for obtaining the
room on rent. As per the photocopy of the visitor’s register,
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in the Aadhar Card, submitted for obtaining the room on
rent, at Chandigarh, victim’s date of birth was found to be
6.6.2005.
16. On 21.04.2025, birth certificate of the victim,
along with photocopy of relevant register, was obtained.
Victim has also produced the photocopies of the
matriculation examination certificate, Aadhar Card, and
per those documents, the date of birth of the victim was
found to be 7.7.2005. However, as per the Aadhar Card,
submitted for obtaining the room on rent at Chandigarh,
her date of birth was found to be 6.6.2005.
17. It has further been mentioned in the status
report that accused Sahil Sharma (applicant), during
investigation also disclosed that on 6.7.2024, the victim,
through email, has forwarded a copy of the Aadhar Card,
containing year of her birth as 2001. Hence, a prayer has
been made to dismiss the application.
18. In view of the request made by the Investigating
Officer, the applicant was directed to join the investigation
on 1.5.2025, at 4.00 p.m. and the matter was adjourned to
15.5.2025.
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19. On 15.5.2025, when the victim appeared, along
with her counsel, in this case, then, she was ordered to be
impleaded in the present case as partyrespondent No.2.
20. On 15.05.2025, status report has been filed,
according to which, the victim was found to be the member
of Scheduled Caste community, whereas, the accused is
from general category. As such, provisions of Section 3(2)
(v) of the Scheduled Caste and Scheduled Tribe (Prevention
of Atrocities) Act, 1989 (hereinafter referred to as ‘the
SC&ST Act’), were added, in this case, and investigation
was thereafter entrusted to Additional Superintendent of
Police on 8.5.2025.
21. In the status report, another apprehension has
been put forth that in case, the application is allowed, in
that eventuality, the applicant may coerce the witnesses
and there are chances that he may destroy the evidence
against him. As such, a prayer has been made to dismiss
the application. On that day, the matter was adjourned to
22.5.2025.
22. On 22.5.2025, supplementary status report was
filed and the matter was adjourned for 29.5.2025.
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23. In this case, victimrespondent No.2, has also
filed objections, in which, she has taken a stand that she
and the applicant met, for the first time, in the year 2021
and they were in romantic relationship with each other.
According to her, at the relevant time, she was about 17
years of age and the applicant has disclosed his age as 26
years. She has categorically denied the claim of the
applicant that he met with respondent No.2victim, in the
year 2023.
24. According to the complainant, physical
relations were made by the applicant on the pretext of
solemnizing marriage with her. She has asserted that the
applicant frequently took her to ‘X’ Hotel, owned by his
friend at ‘Z’. He also took her to Chandigarh on various
occasions, where, they engaged in physical intimacy. Their
relationship was in the knowledge of their family.
25. The complainant has further asserted the fact
that applicant is in the habit of consuming alcohol and he
used to utter derogatory and casteist remarks against the
victim as ‘Chamar’ and ‘Churi’. However, the victim was
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allegedly affectionate towards him, as such, she has not
objected to such remarks.
26. It is the further case of the complainant that in
the month of April, 2025, the applicant had made a
proposal to the victim to solemnize marriage with her,
upon which, both of them had mutually agreed to
solemnize the marriage, on 3.4.2025. The applicant
allegedly suggested a Court marriage in Dalhousie,
expressing his intent to keep the marriage confidential due
to opposition from his family. He also assured the victim
that he would disclose the factum of marriage to his family
after 56 months. However, on 2.4.2025, when the victim
attempted to contact the applicant, he failed to respond.
As such, the applicant has violated the promise and
abandoned the complainant.
27. Not only this, according to the victim, the
applicant has fabricated the copy of Aadhar Card of the
victim, altering the year of birth from 2005 to 2001. It is
her further case that the sister of the applicant had offered
monetary compensation to her to withdraw the complaint
and not only this, his brother had alleged false allegations
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that the victim is demanding Rs.45,00,000/ to settle the
matter. Highlighting the fact that the police have added
Section 3(2)(v) of the SC & ST Act, as such, a prayer has
been made that the present application is not
maintainable. Along with the objections, printout of the
social media App, have also been annexed.
28. On the basis of the above facts, Shri Tejasvi
Sharma, learned Additional Advocate General, Ms. Kritika
Sharma and Mr. Gaurav Kumar, Advocates have prayed
that the present application with the addition of Section
3(2)(v) of SC&ST Act, has become nonmaintainable, as
such, a prayer has been made to dismiss the application,
being not maintainable.
29. Perusal of the record reveals that on 9.5.2025,
after receiving the caste certificate of victim, as well as of
the applicant, Police has added Section 3(2)(v) of SC & ST
Act and thereafter, the investigation was handed over to
Additional Superintendent of Police.
30. Perusal of the record also shows that on
6.5.2025, the victim has made a supplementary statement,
disclosing therein, that her family belongs to a scheduled
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caste community, whereas, applicant Sahil Sharma is from
Pandit family (general category). Applicant is stated to be
knowing the fact that the victim is from scheduled caste
community. Initially, the applicant has alleged that he
does not believe in castism and when child victim has
allegedly persuaded him to have a discussion about their
marriage with his family members, upon which, he
disclosed that his family members will not accept the
marriage. As such, he has persuaded her to solemnize
Court marriage on 3.4.2025 and according to her,
applicant assured her that he will disclose this fact to his
family members.
31. Later on, the complainant has however, got
recorded that on 2.4.2025, when, she called the applicant,
his mobile phone was found switched off and according to
her, applicant Sahil Sharma, is putting off marriage with
her, on account of the fact that she belongs to Scheduled
Caste community. Lastly, she has disclosed that the
applicant was having evil design, in his mind and getting
the said evil design, fulfilled, on the pretext of marriage,
sexually exploited her.
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32. In the FIR, Section 3 (2)(v) of the SC&ST Act has
not been mentioned, nor, the same has been mentioned in
the status reports, which have been filed from time to time
i.e. on 8.4.2025, and 30.4.2024. The provisions of Section
3(2)(v) of the SC&ST Act have been added only on 7.5.2025
and thereafter, the investigation of the case has been
entrusted to Additional Superintendent of Police, Chamba.
33. The statement of the victim was recorded on
06.05.2025, in which, she has alleged that she was
allegedly raped by the applicant on the ground that she
belongs to scheduled caste community. Admittedly, in the
FIR, which was registered on the complaint of the
complainantvictim, who is not an illiterate person, but, an
educated girl, as well as, in the initial two status reports,
filed in this Court, there is no reference with regard to the
provisions of SC&ST Act, what to talk about the fulfillment
of necessary ingredients to constitute the said offence.
34. At the time of deciding the question of granting
the relief to the person, who is approaching the Court
under Section 482 of the BNSS, only the allegations
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mentioned in the FIR have to be evaluated in order to find
out, by taking the allegations at their face value.
35. In the FIR, the complainant has not even
whispered about her caste, nor alleged that she was
allegedly raped on the pretext of being member of
Scheduled Caste community.
36. The Hon’ble Supreme Court in Shajan Skaria
versus State of Kerala & Another, 2024 SCC OnLine
SC 2249, has held that if the complaint does not make out
a prima facie case for the applicability of the provisions of
SC&ST Act, the Court would not be precluded from
granting prearrest bail to the accused persons. The
Hon’ble Supreme Court has also held that if necessary
ingredients to constitute the offence under the SC&ST Act,
are not made out upon the reading of the complaint, no
case can be said to exist prima facie. Relevant paragraphs
35 to 39, 47 and 48 of the judgment, are reproduced as
under:
“35. Thus, the decision in Prathvi Raj Chauhan
(supra) makes it abundantly clear that even
while upholding the validity of Section 18A of
the Act, 1989, this Court observed that if the
complaint does not make out a prima facie case
for applicability of the provisions of the Act, 1989
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then the bar created by Sections 18 and 18A(i)
shall not apply and thus the court would not be
precluded from granting prearrest bail to the
accused persons.
36. Justice Ravindra Bhat, in his concurring
judgment, observed that while considering any
application seeking prearrest bail in connection
with an offence alleged to have been committed
under the provisions of the Act, 1989, the courts
should balance two interests – On one hand they
should ensure that the power is not exercised
akin to the jurisdiction under Section 438 of the
CrPC while on the other hand they should ensure
that the power is used sparingly in exceptional
cases where no prima facie offence is made out
as shown in the FIR or the complaint. It was
observed that in cases where no prima facie
materials exist in a complaint which would
warrant the arrest of the accused, the court
would have the inherent power to direct a pre
arrest bail.
37. The applicability of Section 438 of the CrPC
to cases registered under the Act, 1989 was also
dealt with by a twoJudge Bench of this Court in
Vilas Pandurang Pawar and Another v. State of
Maharashtra and Others reported in (2012) 8
SCC 795. The specific issue framed and
answered by this Court was whether an accused
charged with various offences under the IPC
along with offences under the Act, 1989 would
be entitled for an anticipatory bail under Section
438 of CrPC.
38. It was observed by this Court that although
Section 18 of the Act, 1989 creates a bar for
invoking Section 438 of the CrPC yet the courts
are entrusted with a duty to verify the averments
in the complaint and to find out whether an
offence under the Act, 1989 is prima facie made
out or not. It was further observed that while
considering the application for anticipatory bail,
the scope for appreciation of evidence and other
material is limited and the courts are not
expected to undertake an intricate evidentiary
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inquiry of the materials on record. The relevant
observations are reproduced hereinbelow:
“9. Section 18 of the SC/ST Act creates a
bar for invoking Section 438 of the Code.
However, a duty is cast on the court to
verify the averments in the complaint and
to find out whether an offence under
Section 3(1) of the SC/ST Act has been
prima facie made out. In other words, if
there is a specific averment in the
complaint, namely, insult or intimidation
with intent to humiliate by calling with
caste name, the accused persons are not
entitled to anticipatory bail.
10. The scope of Section 18 of the SC/ST
Act read with Section 438 of the Code is
such that it creates a specific bar in the
grant of anticipatory bail. When an
offence is registered against a person
under the provisions of the SC/ST Act, no
Court shall entertain application for
anticipatory bail, unless it prima facie
finds that such an offence is not made
out. Moreover, while considering the
application for bail, scope for appreciation
of evidence and other material on record
is limited. Court is not expected to indulge
in critical analysis of the evidence on
record. When a provision has been
enacted in the Special Act to protect the
persons who belong to the Scheduled
Castes and the Scheduled Tribes and a
bar has been imposed in granting bail
under Section 438 of the Code, the
provision in the Special Act cannot be
easily brushed aside by elaborate
discussion on the evidence.”
(Emphasis supplied)
39. A threeJudge Bench of this Court in Rahna
Jalal v. State of Kerala reported in (2021) 1 SCC
733 while discussing in the context of Section 7
of the Muslim Women (Protection of Rights on
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Marriage) Act, 2019, elaborated on the
requirement of the existence of a prima facie case
under Section 18 of the Act, 1989 for the bar of
anticipatory bail to become applicable, as
follows:
“25. Thus, even in the context of
legislation, such as the Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act 1989, where a bar is
interposed by the provisions of Section 18
and Subsection (2) of Section 18A on the
application of Section 438 of the CrPC,
this Court has held that the bar will not
apply where the complaint does not make
out “a prima facie case” for the
applicability of the provisions of the Act. A
statutory exclusion of the right to access
remedies for bail is construed strictly, for
a purpose. Excluding access to bail as a
remedy, impinges upon human liberty.
Hence, the decision in Chauhan (supra)
held that the exclusion will not be
attracted where the complaint does not
prima facie indicate a case attracting the
applicability of the provisions of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act 1989.”
(Emphasis supplied)
xxx xxx xxx
47. Prima facie is a Latin term that translates to
“at first sight” or “based on first impression”. The
expression “where no prima facie materials exist
warranting arrest in a complaint or FIR” should
be understood as “when based on first
impression, no offence is made out as shown in
the FIR or the complaint”. This means that when
the necessary ingredients to constitute the
offence under the Act, 1989 are not made out
upon the reading of the complaint, no case can be
said to exist prima facie.
48. As a sequitur, if the necessary ingredients to
constitute the offence under the Act, 1989 are not
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disclosed on the prima facie reading of the
allegations levelled in the complaint or FIR, then
in such circumstances, as per the consistent
exposition by various decisions of this Court, the
bar of Section 18 would not apply and the courts
would not be absolutely precluded from granting
prearrest bail to the accused persons.”
37. Judging the facts and circumstances of the
present case, in the light of the above decision of the
Hon’ble Apex Court, in the complaint, on the basis of
which, the FIR, in question, has been registered, there is
no reference with regard to the provisions of SC&ST Act,
nor the same has been mentioned in the status reports,
which have been filed by the Police, in this case, on
8.4.2025 and 30.04.2025. The provisions of Section 3(2)(v)
of the SC & ST Act, were added only on 7.5.2025, on the
basis of the caste certificates of the complainant and
applicant, which was obtained by the I.O. Thereafter, the
supplementary statement of the complainant was recorded
under Section 180 of the BNSS.
38. As stated above, in the FIR, in question, there is
no reference with regard to the fact that the victim was
allegedly raped on the ground that she belongs to
scheduled caste community. If there is no reference with
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regard to ingredients of the SC&ST Act, in that eventuality,
the bar as created by Section 18 of the SC&ST Act, does
not come in the way of this Court to grant relief to the
applicant.
39. The Hon’ble Supreme Court in Dr. Subhash
Kashinath Mahajan versus State of Maharashtra &
Another, (2018) 6 Supreme Court Cases, 454, has held
that if no prima facie case is made out, then the relief of
anticipatory bail can be granted in cases under the
Atrocities Act. Relevant paragraph 79.2 of the judgment is
reproduced as under:
“79.2. There is no absolute bar against grant of
anticipatory bail in cases under the Atrocities
Act if no prima facie case is made out or where
on judicial scrutiny the complaint is found to be
prima facie mala fide. We approve the view
taken and approach of the Gujarat High Court in
Pankaj D Suthar and Dr. N.T. Desai and clarify
the judgments of this Court in Balothia and
Manju Devi.”
40. Similar view has again been reiterated by the
Hon’ble Supreme Court in Prithvi Raj Chauhan versus
Union of India and Others, 2020 (4) Supreme Court
Cases 727. Relevant paragraphs 11, 31 to 33 of the
judgment are reproduced as under:
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11. Concerning the applicability of provisions of
section 438 Cr.PC, it shall not apply to the cases
under Act of 1989. However, if the complaint
does not make out a prima facie case for
applicability of the provisions of the Act of 1989,
the bar created by section 18 and 18A (i) shall
not apply. We have clarified this aspect while
deciding the review petitions.
xxx xxx xxx
31. These facts, in my opinion ought to be kept
in mind by courts which have to try and deal
with offences under the Act. It is important to
keep oneself reminded that while sometimes
(perhaps mostly in urban areas) false
accusations are made, those are not necessarily
reflective of the prevailing and wide spread
social prejudices against members of these
oppressed classes. Significantly, the amendment
of 2016, in the expanded definition of ‘atrocity’,
also lists pernicious practices (under Section 3)
including forcing the eating of inedible matter,
dumping of excreta near the homes or in the
neighbourhood of members of such communities
and several other forms of humiliation, which
members of such scheduled caste communities
are subjected to. All these considerations far
outweigh the petitioners’ concern that innocent
individuals would be subjected to what are
described as arbitrary processes of investigation
and legal proceedings, without adequate
safeguards. The right to a trial with all
attendant safeguards are available to those
accused of committing offences under the Act;
they remain unchanged by the enactment of the
amendment.
32. As far as the provision of Section 18A and
anticipatory bail is concerned, the judgment of
Mishra, J, has stated that in cases where no
prima facie materials exist warranting arrest in
a complaint, the court has the inherent power to
direct a prearrest bail.
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33. I would only add a caveat with the
observation and emphasize that while
considering any application seeking prearrest
bail, the High Court has to balance the two
interests: i.e. that the power is not so used as to
convert the jurisdiction into that under Section
438 of the Criminal Procedure Code, but that it is
used sparingly and such orders made in very
exceptional cases where no prima facie offence
is made out as shown in the FIR, and further
also that if such orders are not made in those
classes of cases, the result would inevitably be
a miscarriage of justice or abuse of process of
law. I consider such stringent terms, otherwise
contrary to the philosophy of bail, absolutely
essential, because a liberal use of the power to
grant prearrest bail would defeat the intention
of Parliament.
41. This view has again been followed by the
Hon’ble Supreme Court in Union of India versus State of
Maharashtra and Others, 2020 (4) Supreme Court
Cases 761. Relevant paragraphs 57 & 63 of the judgment
are reproduced as under:
57. The guidelines in paras 79.3 and 79.4
appear to have been issued in view of the
provisions contained in Section 18 of the Act of
1989; whereas adequate safeguards have been
provided by a purposive interpretation by this
Court in the case of State of M.P. v. R.K.
Balothia, (1995) 3 SCC 221. The consistent
view of this Court that if prima facie case has
not been made out attracting the provisions of
SC/ST Act of 1989, in that case, the bar
created under section 18 on the grant of
anticipatory bail is not attracted. Thus, misuse
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of the provisions of the Act is intended to be
taken care of by the decision above. In Kartar
Singh (supra), a Constitution Bench of this
Court has laid down that taking away the said
right of anticipatory bail would not amount to a
violation of Article 21 of the Constitution of
India. Thus, prima facie it appears that in the
case of misuse of provisions, adequate
safeguards are provided in the decision
mentioned above.
xxx xxx xxx
63. By the guidelines issued, the anomalous
situation may crop up in several cases. In case
the appointing authority forms a view that as
there is no prima facie case the incumbent is
not to be arrested, several complications may
arise. For the arrest of an offender, maybe a
public servant, it is not the provision of the
general law of Cr.PC that permission of the
appointing authority is necessary. No such
statutory protection provided to a public servant
in the matter of arrest under the IPC and the
Cr.PC as such it would be discriminatory to
impose such rider in the cases under the Act of
1989. Only in the case of discharge of official
duties, some offence appears to have been
committed, in that case, sanction to prosecute
may be required and not otherwise. In case the
act is outside the purview of the official
discharge of duty, no such sanction is
required.”
42. The complainant has not bothered to mention
the material facts in the complaint that she has been raped
by the applicant on the ground that she belongs to
scheduled caste community nor any reference with regard
to her caste has been made in the FIR. The same has been
23 2025:HHC:19540
mentioned only on 7.5.2025, when her supplementary
statement, under Section 180 of the BNSS was recorded.
43. In the factual background, the material
question, which arises for determination before this Court
is whether the said statement can be said to be the part of
the FIR, or not, in which, the present application for
anticipatory bail, under Section 482 of the BNSS has been
made.
44. Hon’ble Supreme Court in Allarakha Habib
Memon & Others versus State of Gujarat, (2024) 9
Supreme Court Cases 546, has held that even the FIR,
which is prepared after reaching the spot, after due
deliberations, consultations and discussion, cannot be
treated as FIR and it would be treated as a statement made
during the investigation of a case and is hit by Section 162
Cr.PC. Relevant paragraph 28 of the judgment, is
reproduced, as under:
28. This Court in the case of State of A.P. v.
Punati Ramulu and Others held that when the
police officer does not deliberately record the FIR
on receipt of information about cognizable
offence and the FIR is prepared after reaching
the spot after due deliberations, consultations
and discussion, such a complaint cannot be
treated as FIR and it would be a statement
24 2025:HHC:19540
made during the investigation of a case and is
hit by Section 162 CrPC. The relevant paras of
the judgment in this regard are reproduced
hereinbelow:
“5. According to the evidence of PW 22,
Circle Inspector, he had received
information of the incident from police
constable No. 1278, who was on
‘bandobast’ duty. On receiving the
information of the occurrence, PW 22 left
for the village of occurrence and started
the investigation in the case. Before
proceeding to the village to take up the
investigation, it is conceded by PW 2 in his
evidence, that he made no entry in the
daily diary or record in the general diary
about the information that had been given
to him by constable 1278, who was the
first person to give information to him on
the basis of which he had proceeded to the
spot and taken up the investigation in
hand. It was only when PW 1 returned
from 1994 Supp (1) SCC 590 the police
station along with the written complaint to
the village that the same was registered
by the Circle Inspector, PW 22, during the
investigation of the case at about 12.30
noon, as the FIR, Ex. P1. In our opinion,
the complaint, Ex. P1, could not be treated
as the FIR in the case as it certainly would
be a statement made during the
investigation of a case and hit by Section
162 CrPC. As a matter of fact the High
Court recorded a categorical finding to the
effect that Ex. P1 had not been prepared
at Narasaraopet and that it had “been
brought into existence at Pamaidipadu
itself, after due deliberation”. Once we find
that the investigating officer has
deliberately failed to record the first
information report on receipt of the
information of a cognizable offence of the
nature, as in this case, and had prepared
25 2025:HHC:19540
the first information report after reaching
the spot after due deliberations,
consultations and discussion, the
conclusion becomes inescapable that the
investigation is tainted and it would,
therefore, be unsafe to rely upon such a
tainted investigation, as one would not
know where the police officer would have
stopped to fabricate evidence and create
false clues. Though we agree that mere
relationship of the witnesses PW 3 and PW
4, the children of the deceased or of PW 1
and PW 2 who are also related to the
deceased, by itself is not enough to
discard their testimony and that the
relationship or the partisan nature of the
evidence only puts the Court on its guard
to scrutinise the evidence more carefully,
we find that in this case when the bona
fides of the investigation has been
successfully assailed, it would not be safe
to rely upon the testimony of these
witnesses either in the absence of strong
corroborative evidence of a clinching
nature, which is found wanting in this
case.”
(emphasis supplied)
45. Judging the facts and circumstances of the
present case, in the light of the decision of the Hon’ble
Supreme Court in Allarakha Habib Memon‘s case
(supra), the statement of the victim, has been recorded, in
this case, on 06.05.2025, under Section 180 of BNSS (161
Cr.PC) and as per the provisions of Section 162 Cr.PC, the
same cannot be used for any other purpose except for the
26 2025:HHC:19540
same, which have been mentioned in Section 181 of the
BNSS (Section 162 Cr.PC). Provisions of Section 181 of the
BNSS (Section 162 Cr.PC) are reproduced, as under:
181. Statements to police and use thereof.-
(1) No statement made by any person to a
police officer in the course of an investigation
under this Chapter, shall, if reduced to writing,
be signed by the person making it; nor shall any
such statement or any record thereof, whether in
a police diary or otherwise, or any part of such
statement or record, be used for any purpose,
save as hereinafter provided, at any inquiry or
trial in respect of any offence under investigation
at the time when such statement was made:
Provided that when any witness is called
for the prosecution in such inquiry or trial whose
statement has been reduced into writing as
aforesaid, any part of his statement, if duly
proved, may be used by the accused, and with
the permission of the Court, by the prosecution,
to contradict such witness in the manner
provided by section 148 of the Bharatiya
Sakshya Adhiniyam, 2023; and when any part
of such statement is so used, any part thereof
may also be used in the reexamination of such
witness, but for the purpose only of explaining
any matter referred to in his crossexamination.
(2) Nothing in this section shall be deemed to
apply to any statement falling within the
provisions of clause (a) of section 26 of the
Bharatiya Sakshya Adhiniyam, 2023; or to
affect the provisions of the proviso to subsection
(2) of section 23 of that Adhiniyam.
Explanation.An omission to state a fact or
circumstance in the statement referred to in sub
section (1) may amount to contradiction if the
same appears to be significant and otherwise
relevant having regard to the context in which
27 2025:HHC:19540
such omission occurs and whether any omission
amounts to a contradiction in the particular
context shall be a question of fact.”
46. Once, it has been held that the said statement
cannot be treated as part of the FIR, then, to the
considered opinion of this Court, there is no legal
hesitation for this Court to entertain the present
application. As such, mere addition of Section 3(2)(v) of
the SC&ST Act, does not take away the powers of this
Court to grant relief, under Section 482 of the BNSS, as,
from bare reading of the FIR, no case is made out, under
Section 3(2)(v) of the SC&ST Act.
47. The view of this Court is being guided by the
decision of a three Judge Bench of the Hon’ble Supreme
Court in V.K. Mishra & Another versus State of
Uttarakhand & Another, (2015) 9 Supreme Court
Cases 588. Relevant paragraphs 15 to 19, of the
judgment, are reproduced, as under:
15. Section 161 Cr.P.C. titled “Examination of
witnesses by police” provides for oral
examination of a person by any investigating
officer when such person is supposed to be
acquainted with the facts and circumstances of
the case. The purpose for and the manner in
which the police statement recorded under
28 2025:HHC:19540
Section 161 Cr.P.C can be used at any trial are
indicated in Section 162 Cr.P.C. Section 162
Cr.P.C. reads as under:
162. Statements to police not to be signed-Use of
statements in evidence.-(1) No statement made
by any person to a police officer in the course of
an investigation under this Chapter, shall, if
reduced to writing, be signed by the person
making it; nor shall any such statement or any
record thereof, whether in a police diary or
otherwise, or any part of such statement or
record, be used for any purpose, save as
hereinafter provided, at any inquiry or trial in
respect of any offence under investigation at the
time when such statement was made:
Provided that when any witness is called for the
prosecution in such inquiry or trial whose
statement has been reduced into writing as
aforesaid, any part of his statement, if duly
proved, may be used by the accused, and with
the permission of the Court, by the prosecution,
to contradict such witness in the manner
provided by section 145 of the Indian Evidence
Act, 1872 (1 of 1872); and when any part of
such statement is so used, any part thereof may
also be used in the reexamination of such
witness, but for the purpose only of explaining
any matter referred to in his crossexamination.
(2) Nothing in this section shall be deemed to
apply to any statement falling within the
provisions of clause (1) of section 32 of the
Indian Evidence Act, 1872 (1 of 1872), or to
affect the provisions of section 27 of that Act.
Explanation. An omission to state a fact or
circumstance in the statement referred to in sub
section (1) may amount to contradiction if the
same appears to be significant and otherwise
relevant having regard to the context in which
such omission occurs and whether any omission
amounts to a contradiction in the particular
context shall be a question of fact.
29 2025:HHC:19540
16. Section 162 Cr.P.C. bars use of statement of
witnesses recorded by the police except for the
limited purpose of contradiction of such
witnesses as indicated there. The statement
made by a witness before the police under
Section 161(1) Cr.P.C. can be used only for the
purpose of contradicting such witness on what
he has stated at the trial as laid down in the
proviso to Section 162 (1) Cr.P.C. The statements
under Section 161 Cr.P.C. recorded during the
investigation are not substantive pieces of
evidence but can be used primarily for the
limited purpose: (i) of contradicting such witness
by an accused under Section 145 of Evidence
Act;
(ii) the contradiction of such witness also by the
prosecution but with the leave of the Court and
(iii) the reexamination of the witness if
necessary.
17. Court cannot suo moto make use of
statements to police not proved and ask question
with reference to them which are inconsistent
with the testimony of the witness in the court.
The words in Section 162 Cr.P.C. “if duly
proved” clearly show that the record of the
statement of witnesses cannot be admitted in
evidence straightway nor can be looked into but
they must be duly proved for the purpose of
contradiction by eliciting admission from the
witness during crossexamination and also
during the crossexamination of the investigating
officer. Statement before the investigating officer
can be used for contradiction but only after strict
compliance with Section 145 of Evidence Act
that is by drawing attention to the parts
intended for contradiction.
18. Section 145 of the Evidence Act reads as
under:
145. Crossexamination as to previous
statements in writing. A witness may be cross
examined as to previous statements made by
him in writing or reduced into writing, and
30 2025:HHC:19540relevant to matters in question, without such
writing being shown to him, or being proved;
but, if it is intended to contradict him by the
writing, his attention must, before the writing
can be proved, be called to those parts of it
which are to be used for the purpose of
contradicting him.
19. Under Section 145 of the Evidence Act when
it is intended to contradict the witness by his
previous statement reduced into writing, the
attention of such witness must be called to those
parts of it which are to be used for the purpose
of contradicting him, before the writing can be
used. While recording the deposition of a
witness, it becomes the duty of the trial court to
ensure that the part of the police statement with
which it is intended to contradict the witness is
brought to the notice of the witness in his cross
examination. The attention of witness is drawn
to that part and this must reflect in his cross
examination by reproducing it. If the witness
admits the part intended to contradict him, it
stands proved and there is no need to further
proof of contradiction and it will be read while
appreciating the evidence. If he denies having
made that part of the statement, his attention
must be drawn to that statement and must be
mentioned in the deposition. By this process the
contradiction is merely brought on record, but it
is yet to be proved. Thereafter when
investigating officer is examined in the court, his
attention should be drawn to the passage
marked for the purpose of contradiction, it will
then be proved in the deposition of the
investigating officer who again by referring to
the police statement will depose about the
witness having made that statement. The
process again involves referring to the police
statement and culling out that part with which
the maker of the statement was intended to be
contradicted. If the witness was not confronted
with that part of the statement with which the
defence wanted to contradict him, then the court
31 2025:HHC:19540
cannot suo moto make use of statements to
police not proved in compliance with Section 145
of Evidence Act that is, by drawing attention to
the parts intended for contradiction.”
48. Similar view has also been taken by the Hon’ble
Supreme Court in Parvat Singh & Others versus State
of Madhya Pradesh, (2020) 4 Supreme Court Cases 33.
Relevant paragraphs 13.1 & 13.2 of the judgment, are
reproduced, as under:
13.1. It is required to be noted that it was a
black night (Amavasya) at the time of incident. It
was a dark night as the incident has happened
between 45 a.m. PW8 in her statement recorded
under Section 161 Cr.P.C. has stated that she
has seen all the accused in the light of the torch.
She has stated that Bal Kishan – original
accused no.1 was having an axe and other four
were armed with lathis. She had also stated in
her statement under Section 161 Cr.P.C. that Bal
Kishan – original accused no.1 gave the axe
blow on the neck of the deceased due to the
enmity and earlier dispute and other accused
were telling to run away immediately and
thereafter all the five accused ran away from
behind the cattle shed/house. She stated that
she had identified all the accused in the light of
the torch and also by voice. According to her
after she shouted, other persons came.
However, there is material improvement in her
deposition before the Court. In her deposition,
she has stated that accused Santosh and
Rakesh caught hold of Bal Kishan – deceased.
In her deposition, she has also stated that there
was a chimney light in the cattle shed. She has
also stated in her deposition that the accused
ran away from the nearby agricultural field of
32 2025:HHC:19540
sugarcane. Therefore, the deposition of PW8 is
full of material contradictions and improvements
so far as original accused Nos. 2 to 5 is
concerned. It is required to be noted that no
other independent witness even named by PW8
has supported the case of the prosecution.
Though, according to PW8, she identified the
accused in the light of the torch, there is no
recovery of torch. There is material improvement
so far as the chimney light is concerned. In her
deposition, she has not stated anything that the
appellants – original accused nos. 2 to 5 were
having the lathis, though she has stated this in
her statement under Section 161 Cr.P.C. The
High Court has observed relying upon her
statement recorded under Section 161 Cr.P.C.
that the appellants herein – accused nos. 2 to 5
were having lathis. However, as per the settled
preposition of law a statement recorded under
Section 161 Cr.P.C. is inadmissible in evidence
and cannot be relied upon or used to convict the
accused. As per the settled proposition of law,
the statement recorded under Section 161
Cr.P.C. can be used only to prove the
contradictions and/or omissions. Therefore, as
such, the High Court has erred in relying upon
the statement of PW8 recorded under Section
161 Cr.P.C. while observing that the appellants
were having the lathis.
14.2 As observed hereinabove in her statement
under Section 161 Cr.P.C., she has never stated
that accused Santosh and Rakesh caught hold
of Bal Kishan, but stated that the appellants
herein told to run away as other persons have
woken. In the facts and circumstances of the
case, there are material contradictions,
omissions and/or improvements so far as the
appellants herein – original accused nos. 2 to 5
are concerned and therefore we are of the
opinion that it is not safe to convict the
appellants on the evidence of the sole witness of
PW8. The benefit of material contradictions,
omissions and improvements must go in favour
33 2025:HHC:19540
of the appellants herein. Therefore, as such the
appellants are entitled to be given benefit of
doubt. 14.3 Now, so far as the submission on
behalf of the State that relying upon the
deposition of PW8, the original accused no.1
was convicted and his conviction has been
confirmed upto this Court and therefore to
dismiss the present appeal qua other accused is
concerned from the evidence on record and
having observed hereinabove the case of the
appellants – original accused nos. 2 to 5, is
distinguishable on facts. There are material
contradictions and omissions so far as the
appellants – original accused nos. 2 to 5 are
concerned. So far as the original accused no 1 is
concerned, PW8 is consistent in her statement
under Section 161 Cr.P.C. as well as in her
deposition before the Court. There was a
recovery of axe used in commission of the
offence by accused no.1 at the instance of
accused no.1. Under the circumstances, the case
of the original accused nos. 2 to 5 is clearly
distinguishable to that of original accused no.1.
49. Considering the fact that the investigation, in
the present case, is complete and the applicant has joined
the investigation, this Court is of the view that the
dismissal of the application would be nothing, but pretrial
punishment, which is prohibited under the law, as the
presumption of innocence is available to the applicant
until proven guilty.
50. At the time of deciding the bail application,
detailed discussion of the evidence, so collected, by the
34 2025:HHC:19540
prosecution or about the defence, which has been taken,
by the applicant, should be avoided, as, it would cause
prejudice to the case of the prosecution, as well as, to that
of the accused.
51. In the objections filed by respondent No.2
complainant, a specific stand has been taken that she and
applicant were in romantic relationship and it would be
proved during trial, whether the physical intimacy between
the applicant and complainant was on the pretext of
marriage or the same was a consensual relationship.
52. It would also be proved during trial, whether
the complainant and the applicant had crossed the sacred
line, in the year 2021, when the complainant has not
attained the age of majority, as different dates of birth of
the complainant have been mentioned in the visitor’s
register of the hotel, where they had allegedly stayed for
considerable long time.
53. Considering all these facts, the interim order
dated 08.04.2025, passed by this Court, is hereby made
absolute. Therefore, it is ordered that the applicant be
released on bail, in the event of his arrest, in case FIR
35 2025:HHC:19540
No.14 of 2025, dated 05.04.2025, registered, under Section
376 of the IPC, and Section 4 of the POCSO Act, with
Women Police Station Chamba, District Chamba, H.P., on
his furnishing personal bond, in the sum of ₹50,000/,
with one surety of the like amount, to the satisfaction of
the Investigating Officer.
54. This order, however, shall be subject to the
following conditions :
a) That the applicant will join the investigation of the
case, as and when, called for, by the Investigating
Officer, in accordance with law;
b) That the applicant will not leave India, without
prior permission of the Court;
c) That the applicant will not, directly or indirectly,
make any inducement, threat or promise to any
person, acquainted with the facts of the case, so
as to dissuade him/her from disclosing such facts
to the Investigating Officer or the Court; and
d) That the applicant shall 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.
55. 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 application.
36 2025:HHC:19540
56. The applicant is directed to move regular bail
application, when charge sheet will be filed in the
Competent Court of Law.
57. It is made clear that the respondentState is at
liberty to move an appropriate application, in case, any of
the bail conditions, is found violated by the applicant.
58. Record be returned to the quarter concerned.
( Virender Singh )
Judge
June 24, 2025 (ps)