Himachal Pradesh High Court
Akash Chaudhary vs State Of Himachal Pradesh on 27 December, 2024
Neutral Citation No. ( 2024:HHC:16364 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) No. 1775 of 2024
Reserved on: 20.12.2024
Date of Decision: 27.12.2024.
Akash Chaudhary ...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 Ajay Kochhar, Sr. Advocate with
Mr. Pranshul Sharma, Advocate.
For the Respondent : Mr. Lokender Kutlehria, Additional
Advocate General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for seeking
regular bail. It has been asserted that the petitioner was arrested
for the commission of offences punishable under Section 376(2)
and Section 6 of the Protection of Children from Sexual Offences
(POCSO) Act, registered vide FIR No. 31/2023, dated 8.8.2023 at
Women Police Station, Solan, H.P. The petitioner is in judicial
custody. The petitioner had earlier filed a bail petition before this
Court, which was dismissed by the Court. The victim was
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2024:HHC:16364 )
examined before the learned Trial Court, and she claimed herself
to be major at the time of the incident. Her mother was also
examined, and she claimed that the victim was major at the time
of the incident. These new facts have come on record, which show
that the petitioner is not involved in the commission of offences
punishable under Section 376 of IPC and Section 6 of the POCSO
Act. The petitioner is a boy of 20 years. He was in love with the
victim. The relationship between them was consensual. No
fruitful purpose would be served by detaining the petitioner in
judicial custody. The petitioner would abide by all the terms and
conditions, which the Court may impose. Hence, the petition.
2. The petition is opposed by filing a status report
asserting that the victim made a complaint to the police stating
that she and her sister had gone to their mother’s house on
22.6.2023 during the school vacation. She met the accused, who
was her neighbour. The accused called her to her room and raped
her eight times. She returned to her maternal grandmother. She
was taken to the Doctor because she was suffering from a cold.
The doctor found that the victim was pregnant. The police
registered the FIR and conducted the investigation. The date of
birth of the victim was found to be 27.2.2008. The report of the
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Neutral Citation No. ( 2024:HHC:16364 )
DNA analysis was received, which shows that the victim is the
biological mother and the petitioner is the biological father of the
product of conception. A supplementary charge sheet was filed
before the Court on 02.12.2023. The matter is listed before the
Special Court at Solan. The statements of 7/8 witnesses have been
recorded.
3. I have heard Mr Ajay Kochhar, learned Senior Counsel
assisted by Mr. Pranshul, learned counsel for the petitioner and
Mr. Lokender Kutlehria, learned Additional Advocate General for
the respondent-State.
4. Mr Ajay Kochhar, learned Senior Counsel for the
petitioner, submitted that the petitioner is innocent and he was
falsely implicated. The victim and her mother claimed that the
victim was major on the date of the incident. The petitioner was in
love with the victim, and the relationship between them was
consensual. Therefore, he prayed that the present petition be
allowed and the petitioner be released on bail.
5. Mr Lokender Kutlehria, learned Additional Advocate
General for the respondent/State, submitted that the earlier bail
petition filed by the petitioner was dismissed by this Court. There
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Neutral Citation No. ( 2024:HHC:16364 )
is no change in the circumstance, and the petitioner is not
entitled to bail; hence, he prayed that the present petition be
dismissed.
6. I have given considerable thought to the submissions
at the bar and have gone through the records carefully.
7. The parameters for granting bail were considered by
the Hon’ble Supreme Court in Manik Madhukar Sarve v. Vitthal
Damuji Meher, 2024 SCC OnLine SC 2271, wherein it was observed
as under: –
“19. Courts, while granting bail, are required to consider
relevant factors such as the nature of the accusation,
the role ascribed to the accused concerned,
possibilities/chances of tampering with the evidence
and/or witnesses, antecedents, flight risk, et al. Speaking
through Hima Kohli, J., the present coram in Ajwar v.
Waseem, 2024 SCC OnLine SC 974, apropos relevant
parameters for granting bail, observed:
“26. While considering as to whether bail ought to be
granted in a matter involving a serious criminal
offence, the Court must consider relevant factors like the
nature of the accusations made against the accused, the
manner in which the crime is alleged to have been
committed, the gravity of the offence, the role attributed to
the accused, the criminal antecedents of the accused, the
probability of tampering of the witnesses and repeating the
offence, if the accused are released on bail, the likelihood of
the accused being unavailable in the event bail is granted,
the possibility of obstructing the proceedings and evading
the courts of justice and the overall desirability of releasing
5
Neutral Citation No. ( 2024:HHC:16364 )the accused on bail. (Refer: Chaman Lal v. State of U.P.
(2004) 7 SCC 525; Kalyan Chandra Sarkar v. Rajesh Ranjan
alias Pappu Yadav (supra) (2004) 7 SCC
528; Masroor v. State of Uttar Pradesh (2009) 14 SCC 286;
Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC
496; Neeru Yadav v. State of Uttar Pradesh (2014) 16 SCC
508; Anil Kumar Yadav v. State (NCT of Delhi) (2018) 12
SCC 129; Mahipal v. Rajesh Kumar @ Polia (supra) (2020)
2 SCC 118.
27. It is equally well settled that bail, once granted, ought
not to be cancelled in a mechanical manner. However, an
unreasoned or perverse order of bail is always open to
interference by the Superior Court. If there are serious
allegations against the accused, even if he has not misused
the bail granted to him, such an order can be cancelled by
the same Court that has granted the bail. Bail can also be
revoked by a Superior Court if it transpires that the courts
below have ignored the relevant material available on
record or not looked into the gravity of the offence or the
impact on the society resulting in such an order. In P v. State
of Madhya Pradesh (supra) (2022), 15 SCR 211 decided by
a three-judge bench of this Court [authored by one of us
(Hima Kohli, J)] has spelt out the considerations that
must be weighed with the Court for interfering in an
order granting bail to an accused under Section 439(1) of
the CrPC in the following words:
“24. As can be discerned from the above
decisions, for cancelling bail once granted, the court
must consider whether any supervening circumstances
have arisen or the conduct of the accused post grant of
bail demonstrates that it is no longer conducive to a fair
trial to permit him to retain his freedom by enjoying the
concession of bail during trial [Dolat Ram v. State of
Haryana, (1995) 1 SCC 349: 1995 SCC (Cri) 237]. To put
it differently, in ordinary circumstances, this Court
would be loathe to interfere with an order passed by the
court below granting bail, but if such an order is found to
be illegal or perverse or premised on material that is
6
Neutral Citation No. ( 2024:HHC:16364 )irrelevant, then such an order is susceptible to scrutiny
and interference by the appellate court.” (emphasis
supplied)
20. In State of Haryana v. Dharamraj, 2023 SCC OnLine SC
1085, speaking through one of us (Ahsanuddin Amanullah,
J.), the Court, while setting aside an order of the Punjab and
Haryana High Court granting (anticipatory) bail, discussed
and reasoned:
“7. A foray, albeit brief, into relevant precedents is
warranted. This Court considered the factors to guide
the grant of bail in Ram Govind Upadhyay v. Sudarshan
Singh (2002) 3 SCC 598 and Kalyan Chandra
Sarkar v. Rajesh Ranjan (2004) 7 SCC 528. In Prasanta
Kumar Sarkar v. Ashis Chatterjee (2010) 14 SCC 496, the
relevant principles were restated thus:
‘9. … It is trite that this Court does not, normally,
interfere with an order passed by the High Court
granting or rejecting bail to the accused. However, it is
equally incumbent upon the High Court to exercise its
discretion judiciously, cautiously and strictly in
compliance with the basic principles laid down in a
plethora of decisions of this Court on the point. It is well
settled that, among other circumstances, the factors to be
borne in mind while considering an application for bail
are:
(i) whether there is any prima facie or reasonable
ground to believe that the accused had committed the
offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of
conviction;
(iv) danger of the accused absconding or fleeing if
released on bail;
(v) character, behaviour, means, position and
standing of the accused;
(vi) likelihood of the offence being repeated;
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Neutral Citation No. ( 2024:HHC:16364 )
(vii) reasonable apprehension of the witnesses being
influenced; and
(viii) danger, of course, of justice being thwarted by
grant of bail.’
8. In Mahipal v. Rajesh Kumar alias Polia (2020) 2 SCC 118,
this Court opined as under:
’16. The considerations that guide the power of an
appellate court in assessing the correctness of an order
granting bail stand on a different footing from an
assessment of an application for the cancellation of bail.
The correctness of an order granting bail is tested on the
anvil of whether there was an improper or arbitrary
exercise of discretion in the grant of bail. The test is
whether the order granting bail is perverse, illegal or
unjustified. On the other hand, an application for
cancellation of bail is generally examined on the anvil of
the existence of supervening circumstances or violations
of the conditions of bail by a person to whom bail has
been granted. …’
9. In Bhagwan Singh v. Dilip Kumar @ Deepu @
Depak, 2023 INSC 761, this Court, in view of Dolat
Ram v. State of Haryana, (1995) 1 SCC 349; Kashmira
Singh v. Duman Singh, (1996) 4 SCC 693 and X v. State of
Telangana, (2018) 16 SCC 511, held as follows:
’13. It is also required to be borne in mind that when a
prayer is made for the cancellation of the grant of bail,
cogent and overwhelming circumstances must be
present, and bail, once granted, cannot be cancelled in a
mechanical manner without considering whether any
supervening circumstances have rendered it in
conducing to allow fair trial. This proposition draws
support from the Judgment of this Court in Daulat
Ram v. State of Haryana (1995) 1 SCC 349, Kashmira
Singh v. Duman Singh (1996) 4 SCC
693 and XXX v. State of Telangana (2018) 16 SCC 511.’
10. In XXX v. Union Territory of Andaman & Nicobar
Islands, 2023 INSC 767, this Court noted that the principles
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Neutral Citation No. ( 2024:HHC:16364 )
in Prasanta Kumar Sarkar (supra) stood reiterated
in Jagjeet Singh v. Ashish Mishra (2022) 9 SCC 321.
11. The contours of anticipatory bail have been
elaborately dealt with by 5-Judge Benches in Gurbaksh
Singh Sibbia v. State of Punjab, (1980) 2 SCC
565 and Sushila Aggarwal v. State (NCT of Delhi), (2020) 5
SCC 1. Siddharam Satlingappa Mhetre v. State of
Maharashtra, (2011) 1 SCC 694 is worthy of mention in
this context, despite its partial overruling in Sushila
Aggarwal (supra). We are cognizant that liberty is not to be
interfered with easily. More so when an order of pre-arrest
bail already stands granted by the High Court.
12. Yet, much like bail, the grant of anticipatory bail is to be
exercised with judicial discretion. The factors illustrated by
this Court through its pronouncements are illustrative and
not exhaustive. Undoubtedly, the fate of each case turns on
its own facts and merits.” (emphasis supplied)
8. The present petition has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
9. It is undisputed that the petitioner had earlier filed a
bail petition bearing Cr.MP(M) No.780 of 2024, which was
dismissed by the Court on 17.06.2024.
10. It was held in the State of Maharashtra Vs. Captain
Buddhikota Subha Rao (1989) Suppl. 2 SCC 605 that once a bail
application has been dismissed, subsequent bail application can
only be considered if there is a change of circumstances. It was
observed:
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Neutral Citation No. ( 2024:HHC:16364 )
“Once that application was rejected, there was no question of
granting a similar prayer. That is virtually overruling the
earlier decision without there being a change in the fact
situation. And when we speak of change, we mean a
substantial one, which has a direct impact on the earlier
decision and not merely cosmetic changes which are of little
or no consequence. ‘Between the two orders, there was a gap
of only two days, and it is nobody’s case that during these two
days, drastic changes had taken place necessitating the
release of the respondent on bail. Judicial discipline, propriety
and comity demanded that the impugned order should not
have been passed, reversing all earlier orders, including the
one rendered by Puranik, J. only a couple of days before, in the
absence of any substantial change in the fact situation. In
such cases, it is necessary to act with restraint and
circumspection so that the process of the Court is not abused
by a litigant and an impression does not gain ground that the
litigant has either successfully avoided one judge or selected
another to secure an order which had hitherto eluded him.
11. Similar is the judgment delivered in State of M.P. v.
Kajad, (2001) 7 SCC 673, wherein it was observed: –
8. It has further to be noted that the factum of the rejection of
his earlier bail application bearing Miscellaneous Case No.
2052 of 2000 on 5-6-2000 has not been denied by the
respondent. It is true that successive bail applications are
permissible under the changed circumstances. But without
the change in the circumstances, the second application
would be deemed to be seeking a review of the earlier
judgment, which is not permissible under criminal law as has
been held by this Court in Hari Singh Mann v. Harbhajan Singh
Bajwa [(2001) 1 SCC 169: 2001 SCC (Cri) 113] and various other
judgments.
12. Similarly, it was held in Kalyan Chandra Sarkar Vs.
Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 that where an
earlier bail application has been rejected, the Court has to
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Neutral Citation No. ( 2024:HHC:16364 )
consider the rejection of the earlier bail application and then
consider why the subsequent bail application should be allowed. It
was held:
“11. In regard to cases where earlier bail applications have
been rejected, there is a further onus on the court to
consider the subsequent application for grant of bail by
noticing the grounds on which earlier bail applications
have been rejected and after such consideration, if the
court is of the opinion that bail has to be granted then the
said court will have to give specific reasons why in spite of
such earlier rejection the subsequent bail application
should be granted.”
13. A similar view was taken in State of T.N. v. S.A. Raja,
(2005) 8 SCC 380, wherein it was observed:
9. When a learned Single Judge of the same court had
denied bail to the respondent for certain reasons, and that
order was unsuccessfully challenged before the appellate
forum, without there being any major change of
circumstances, another fresh application should not have
been dealt with within a short span of time unless there
were valid grounds giving rise to a tenable case for bail. Of
course, the principles of res judicata are not applicable to
bail applications, but the repeated filing of bail applications
without there being any change of circumstances would
lead to bad precedents.
14. This position was reiterated in Prasad Shrikant Purohit
v. State of Maharashtra (2018) 11 SCC 458, wherein it was observed:
30. Before concluding, we must note that though an
accused has a right to make successive applications for
grant of bail, the court entertaining such subsequent bail
applications has a duty to consider the reasons and
11
Neutral Citation No. ( 2024:HHC:16364 )grounds on which the earlier bail applications were
rejected. In such cases, the court also has a duty to record
the fresh grounds, which persuade it to take a view
different from the one taken in the earlier applications.
15. It was held in Ajay Rajaram Hinge v. State of
Maharashtra, 2023 SCC OnLine Bom 1551 that successive bail
application can be filed if there is a material change in the
circumstance, which means the change in the facts or the law. It
was observed:
7. It needs to be noted that the right to file successive bail
applications accrues to the applicant only on the existence
of a material change in circumstances. The sine qua non for
filing subsequent bail applications is a material change in
circumstance. A material change in circumstances settled
by law is a change in the fact situation or law which
requires the earlier view to be interfered with or where the
earlier finding has become obsolete. However, change in
circumstance has no bearing on the salutatory principle of
judicial propriety that successive bail application needs to
be decided by the same Judge on merits, if available at the
place of sitting. There needs to be clarity between the
power of a judge to consider the application and a person’s
right based on a material change in circumstances. A
material change in circumstance creates in a person
accused of an offence the right to file a fresh bail
application. But, the power to decide such subsequent
application operates in a completely different sphere
unconnected with the facts of a case. Such power is based
on the well-settled and judicially recognised principle that
if successive bail applications on the same subject are
permitted to be disposed of by different Judges, there
would be conflicting orders, and the litigant would be
pestering every Judge till he gets an order to his liking
resulting in the credibility of the Court and the confidence
12
Neutral Citation No. ( 2024:HHC:16364 )of the other side being put in issue and there would be
wastage of Court’s time and that judicial discipline requires
that such matter must be placed before the same Judge, if
he is available, for orders. The satisfaction of material
change in circumstances needs to be adjudicated by the
same Judge who had earlier decided the application.
Therefore, the same Judge needs to adjudicate whether
there is a change in circumstance as claimed by the
applicant, which entitles him to file a subsequent bail
application.”
16. Therefore, the present bail petition can only be
considered based on the change in the circumstances, and it is not
permissible to review the order passed by the Court.
17. The petitioner asserted that the victim and her mother
claimed that the victim was major on the date of the incident.
These statements were not recorded at the time of the decision of
the earlier petition and have material bearing on the merits of the
case. This Court will not appreciate the evidence led by the
prosecution before the learned Trial Court as the same has to be
seen by the learned Trial Court after the conclusion of the trial,
however, prima facie, a perusal of the statement shows that the
victim claimed that she was major and the relationship was
consensual. Her mother also claimed that the victim was major.
The prosecution examined Rameshwar (PW4) to prove the date of
birth certificate (Ext. P4), which shows the victim was born on
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Neutral Citation No. ( 2024:HHC:16364 )
27.02.2008. The status report also shows that the record of the
victim’s date of birth was obtained from the Gram Panchayat,
showing her date of birth as 27.02.2008. The status report shows
that the victim was studying in Government Senior Secondary
School in Class X. It was held by this Court in V. Versus State of H.P.,
2024:HHC:13464 that while determining the victim’s age under
the POCSO Act, the provisions of the Juvenile Justice Act are to be
considered. When the victim was studying in the school, the
certificate from the School has to be preferred over the certificate
obtained from the Gram Panchayat regarding the birth of the
victim. The certificate from Gram Panchayat cannot be used for
determining the age in the absence of the certificate from the
school, therefore, prima facie, at this stage, the certificate issued
by the Gram Panchayat will lose its significance when the victim
and her mother claimed that the victim was major on the date of
the incident and no certificate was obtained from the school.
18. Thus, there is no reasonable ground to believe that the
victim is minor and the petitioner is involved in the commission
of offences punishable under Section 376 of IPC and Section 6 of
the POCSO Act; hence, the further detention of the petitioner is
not justified.
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Neutral Citation No. ( 2024:HHC:16364 )
19. In view of the above, the present petition is allowed,
and the petitioner is ordered to be released on bail subject to his
furnishing bail bonds in the sum of ₹ 50,000/- with one surety in
the like amount, to the satisfaction of the learned Trial Court.
While on bail, the petitioner will abide by the following
conditions:
(i) The petitioner will not intimidate the witnesses, nor will he
influence any evidence in any manner whatsoever.
(ii) The petitioner shall attend the trial and will not seek
unnecessary adjournments.
(iii) The petitioner will not leave the present address for a
continuous period of seven days without furnishing the
address of the intended visit to the concerned Police
Station and the Court.
(iv) The petitioner shall furnish his passport, if any, before the
concerned Police Station.
(v) The petitioner will furnish his mobile number and social
media contact to the Police and the Court and will abide by
the summons/notices received from the Police/Court
through SMS/WhatsApp/Social Media Account. In case of
any change in the mobile number or social media accounts,
the same will be intimated to the Police/Court within five
days from the date of the change.
20. It is clarified that if the petitioner misuses the liberty
or violates any of the conditions imposed upon him, the
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Neutral Citation No. ( 2024:HHC:16364 )
investigating agency shall be free to move the Court for
cancellation of the bail.
21. The observations made hereinabove are regarding the
disposal of this petition and will have no bearing, whatsoever, on
the case’s merits.
22. The petition stands accordingly disposed of. A copy of
this order is sent to the Superintendent District Jail Solan, H.P,
and the learned Trial Court by FASTER.
23. 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 the order presented to it, same may be
ascertained from the official website of this Court.
Digitally
signed by
KARAN SINGH
GULERIA
(Rakesh Kainthla)
Date: Judge
2024.12.27
17:20:10 IST 27th December, 2024
(saurav pathania)