Munish Kumar vs State Of Himachal Pradesh & Another

Virender Singh, J

Applicant – Munish Kumar has filed the present application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), for releasing him, on bail, during the pendency of the trial, arising out of FIR No.106 of 2025, dated 13.06.2025, registered under Sections 65(1), 77, 79, 238 of the Bharatiya Nyaya Sanhita, (hereinafter referred to as the ‘BNS’), Section 67, 67B of the Information and Technology Act, (hereinafter referred to as ‘the IT Act’) and Section 6 and 13 of the Protection of Children from Sexual Offences Act (hereinafter referred to as ‘the POCSO Act’), with Police Station Dharampur, District Solan, H.P.

According to the applicant, he is innocent person and has falsely been implicated, in the present case. According to him, he has no concern whatsoever with the offences, for which, he has been named as accused.

It is the further case of the applicant that according to the prosecution case, date of birth of the child victim is 25.10.2008, however, in order to substantiate the said fact, no evidence has been collected by the prosecution, in this case. Hence, according to the applicant, date of birth of the child victim, as 25.10.2008, has not been proved.

As per the applicant, the investigation, in the present case, is complete and the applicant is in judicial custody.

All these facts, have been pleaded to show that the custodial interrogation of the applicant is no longer required by the police.

The applicant has filed similar application before the Court of learned Additional Sessions Judge, Fast Track Special Court, Solan, District Solan, however, his application was dismissed on 15.11.2025.

Apart from the above, 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.

On the basis of the above facts, a prayer has been made to allow the application.

The complainant, who has been impleaded as respondent No.2, has put appearance along with the child victim on 11.12.2025 and on her request, Mr. Sohail Khan, Advocate has been appointed as legal aid counsel. However, learned legal aid counsel, under instructions, has submitted that respondent No.2, does not want to file any objections.

When, put to notice, police has filed the status report, disclosing therein, that on 13.06.2025, respondent No.2, moved a complaint to the police, mentioning therein that she is resident of the address, as mentioned in the complaint. She has stated that when the child victim came in contact with accused Munish Kumar, at that time, her age was less than 18 years.

10.1. The complainant has also warned the child victim not to talk with him, but, the accused created an instagram account and made obscene photographs and videos viral through the said fake ID.

10.2. Thereafter, those obscene photographs were also forwarded to the son of the complainant through instagram. Not only this, those obscene photographs and videos were also forwarded to the complainant through Whatsapp. As such, she has prayed that action be taken against the applicant.

On the basis of above facts, police registered the FIR and the criminal machinery swung into motion.

During investigation, the observation memo of phone No.62307-29347 was prepared as the accused had forwarded the obscene photographs and videos through whatsapp and made obscene chats. The photographs and videos, as well as, record of chats were downloaded in the pen-drive.

During investigation, the child victim was taken to Civil Hospital, Dharampur, for medico-legal examination, but she refused to undergo medico-legal examination. On 16.06.2025, her statement was got recorded, under Section 183 BNSS, by producing her before the Court of learned Additional Chief Judicial Magistrate, Kasauli. The date of birth certificate of the child victim was obtained. As per the date of birth certificate, her date of birth was found to be 25.10.2008.

On 10.07.2025, the applicant has joined the investigation and produced the new mobile phone, which, on checking, was found containing the obscene photographs and videos of the child victim. The mobile phone was taken into possession and sent for examination to SFSL Junga, from where, the report is still awaited. Thereafter, Section 65(1) of the BNS and Section 6 of the POCSO Act were added, in this case.

During investigation, the accused (applicant) allegedly disclosed that the mobile phone, with which, he has clicked the obscene photographs and made the obscene videos, was destroyed by him and thereafter, purchased new phone. Accused (applicant) was arrested on 10.07.2025 and he was produced before the Court and he was remanded to police custody till 15.07.2025.

During investigation, the accused (applicant) has identified the room, where he had allegedly made physical relations with child victim and recorded the obscene videos and clicked the obscene photographs. Accused was medico-legally examined and the physical evidence, collected by the doctors, was sent to SFSL Junga.

Later on, Section 238 of the BNS was added, in this case, as the applicant has allegedly destroyed the mobile phone. The child victim was also requested to identify the place, but, upon hearing the name of the accused (applicant), she got frightened, as such, the spot could not be got identified from her.

During investigation, according to the police, it was found that accused (applicant) kept the child victim at his house for 6-7 months and made physical relations with her.

After completion of the investigation, the police filed the charge sheet on 11.08.2025 and the case is now listed for consideration of charge. There are total fifteen witnesses.

On the basis of the above facts, a prayer has been made to dismiss the application.

Investigation, in the present case is complete, as such, it can be inferred that the custodial interrogation of the applicant is no longer required by the police.

Even otherwise, the bail application cannot be rejected, as a matter of punishment, as, pre-trial punishment is prohibited under the law and punishment can only be imposed, after the full fledged trial, by competent Court of law. Moreover, a person is presumed to be innocent until proven guilty, after the trial.

Applicant is permanent resident of District Hamirpur, as such, it cannot be apprehended that in case, the the applicant is released on bail, he may not be available for the trial.

So far as the apprehensions, which have been expressed, by the Police, in the status report, are concerned, for those apprehensions, reasonable conditions can be imposed, in case, the applicant is ordered to be released on bail.

In the status report, it has been mentioned that the child victim, has refused to undergo the medico-legal examination, by giving in writing. Refusal of Medical Examination by a rape victim, in the opinion of this Court, raises negative inference.

The view of this Court is being guided, by the decision of Hon’ble Supreme Court in Criminal Appeal No.2097 of 2014, titled as The State of Himachal Pradesh versus Rajesh Mumar @ Munnu, Neutral Citation No.2025 INSC 331. Relevant paragraph 10 of the judgment, is reproduced, as under:-

“10. The afore-extracted portions make it amply clear that the prosecutrix and her parents themselves never fully co-operated with the medical staff, thereby adversely impacting the credibility of their version of events. It is a well- settled proposition of law that non allowance of medical examination by an alleged rape victim raises negative inferences against them. We cannot ascribe any good reason to the complete lack of assistance that the complainants tendered to the authorities, apart from their contradictory stances before the Court. We are further doubtless in this regard as the High Court, while discussing the prosecutrix’s testimony, has come to the invariable conclusion that she was not mentally unsound – given that she was able to clearly comprehend the question and answer during the cross- examination.”

(self emphasis supplied)

Moreover, in the statements under Sections 180 and 183 of the BNSS, the child victim has not deposed anything against the applicant, qua the fact that he had allegedly ravished her, during her stay with him at his house, for about five months.

Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed.

Consequently, the applicant is ordered to be released on bail during the pendency of trial arising out of FIR No.106 of 2025, dated 13.06.2025, registered under Sections 65(1), 77, 79, 238 of the BNS and Sections 67, 67B of the IT Act and Sections 6 and 13 of the POCSO Act with Police Station Dharampur, District Solan, 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.

This order, however, shall be subject to the following conditions:

a) 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 the 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

d) The applicant shall not leave the territory of India without the prior permission of the Court.

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.

It is made clear that respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions is found violated by the applicant.

The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, District Jail, Solan, Himachal Pradesh, through e-mail, with a direction to enter the date of grant of bail in the e-prison software.

In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, District Jail, Solan, Himachal Pradesh, is directed to inform this fact to the Secretary, DLSA, Solan. The Superintendent of Jail, District Jail, Solan, Himachal Pradesh, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of one month from today, then, the said fact be submitted to this Court.

Record be returned to the quarter concerned.