Rajesh Kumar vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking regular bail in F.I.R. No. 100 of 2025, dated 15.05.2025, registered in Police Station Bhawarna, District Kangra, H.P. for the commission of offences punishable under Sections 137(2), 64(1) and 96 of Bharatiya Nyaya Sanhita, 2023 (BNS) and Sections 6 and 7 of the Protection of Children from Sexual Offences Act, 2012 (POCSO).

It has been asserted that, as per the prosecution, the petitioner and his sister (co-accused) had kidnapped the victim and taken her to Jallandhar on 14.05.2025. The petitioner took the victim to his house and committed the penetrative sexual assault on her twice. The victim was aged 17 years at the time of the incident. The victim’s father reported the matter to the police. The police registered the FIR and recovered the victim from the petitioner’s house. The report of the RFSL revealed that the petitioner’s DNA was found on the clothes and biological sample of the victim. The petitioner is innocent, and he was falsely implicated. The police have filed the charge sheet, and no fruitful purpose would be served by detaining the petitioner in custody. The petitioner would abide by all the terms and conditions that the Court may impose upon him; hence, he prayed that the present petition be allowed and the petitioner be released on bail.

The petition is opposed by filing a status report, asserting that the victim was aged 17 years. She left her home on 14.05.2025 at about 7.30 A.M. She did not return, and her phone was found switched off. The matter was reported to the police. The police registered the FIR and investigated the matter. The police subsequently found that the victim was at Jallandhar. The police recovered the victim from the petitioner’s house on 16.05.2025. The victim revealed that the petitioner and his sister took her in a bus to Jallandhar on 14.05.2025. The petitioner resided with the victim at Jallandhar. The petitioner had sexually penetrated her twice. The victim was found to be born on 09.05.2025 and was aged 17 years on the date of the incident. The samples were collected. The charge sheet was filed before the Court on 11.07.2025. The matter was listed on 11.02.2026 for proper order. The statements of six witnesses are yet to be recorded. Hence, the status report.

I have heard M/s Vijender Katoch and Kapil Sharma, Advocates, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General for the respondent/State.

Mr Vijender Katoch, learned counsel for the petitioner, submitted that the petitioner is innocent and that he was falsely implicated. As per the prosecution, the victim had voluntarily accompanied the petitioner. The prosecution has failed to complete the trial within a reasonable time, and the petitioner’s right to a speedy trial is being violated. The petitioner would abide by the terms and conditions that the Court may impose upon him. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

Mr Jitender Sharma, learned Additional Advocate General for the respondent/State, submitted that the victim was a minor and she could not have consented to the sexual intercourse. Her version was duly corroborated by the report of RFSL, in which the petitioner’s DNA was found on the victim’s clothes and her biological samples. The petitioner has not provided any explanation for the presence of his DNA. The statements of six witnesses have been recorded, and there is no delay in the trial. Hence, he prayed that the present petition be dismissed.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

The parameters for granting bail were considered by the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC 314: 2025 SCC OnLine SC 781, wherein it was observed at page 380:

(i) Broad principles for the grant of bail

In Gudikanti Narasimhulu v. High Court of A.P., (1978) 1 SCC 240: 1978 SCC (Cri) 115, Krishna Iyer, J., while elaborating on the content of Article 21 of the Constitution of India in the context of personal liberty of a person under trial, has laid down the key factors that should be considered while granting bail, which are extracted as under: (SCC p. 244, paras 7-9)

“7. It is thus obvious that the nature of the charge is the vital factor, and the nature of the evidence is also perti- nent. The punishment to which the party may be liable, if convicted or a conviction is confirmed, also bears upon the issue.

Another relevant factor is whether the course of justice would be thwarted by him who seeks the benignant jurisdic- tion of the Court to be freed for the time being. [Patrick De- vlin, “The Criminal Prosecution in England” (Oxford Uni- versity Press, London 1960) p. 75 — Modern Law Review, Vol. 81, Jan. 1968, p. 54.]

Thus, the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record, partic- ularly a record which suggests that he is likely to commit se- rious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the ba- sis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.” (emphasis sup- plied)

In Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4 SCC 280: 2001 SCC (Cri) 674, this Court highlighted various aspects that the courts should keep in mind while dealing with an application seeking bail. The same may be extracted as follows: (SCC pp. 284-85, para 8)

“8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles, having regard to the circum- stances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tam- pered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.” (emphasis supplied)

This Court in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688, speaking through Banerjee, J., emphasised that a court exercising discretion in matters of bail has to undertake the same judiciously. In highlighting that bail should not be granted as a matter of course, bereft of cogent reasoning, this Court observed as follows: (SCC p. 602, para 3)

“3. Grant of bail, though being a discretionary order, but, however, calls for the exercise of such a discretion in a judi- cious manner and not as a matter of course. An order for bail bereft of any cogent reason cannot be sustained. Need- less to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts do always vary from case to case. While the placement of the accused in society, though it may be considered by itself, cannot be a guiding factor in the matter of grant of bail, the same should always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail — the more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.” (emphasis supplied)

In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977, this Court held that although it is established that a court considering a bail application can- not undertake a detailed examination of evidence and an elaborate discussion on the merits of the case, yet the court is required to indicate the prima facie reasons justifying the grant of bail.

In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496: (2011) 3 SCC (Cri) 765, this Court observed that where a High Court has granted bail mechanically, the said order would suffer from the vice of non-application of mind, rendering it illegal. This Court held as under with regard to the circumstances under which an order granting bail may be set aside. In doing so, the factors which ought to have guided the Court's decision to grant bail have also been de- tailed as under: (SCC p. 499, para 9)

“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 compli- ance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other cir- cumstances, 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;

(vii) reasonable apprehension of the witnesses being influ- enced; and

(viii) danger, of course, of justice being thwarted by grant of bail.” (emphasis supplied)

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One of the judgments of this Court on the aspect of ap- plication of mind and requirement of judicious exercise of discretion in arriving at an order granting bail to the accused is Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170, wherein a three-Judge Bench of this Court, while setting aside an unreasoned and casual order (Pappu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2856 and Pappu Singh v. State of Bihar, 2021 SCC OnLine Pat 2857) of the High Court granting bail to the accused, observed as fol- lows: (Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170]), SCC p. 511, para 35)

“35. While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an ap- plication for bail courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by ade- quate material brought on record so as to enable a court to arrive at a prima facie conclusion. While considering an application for the grant of bail, a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal an- tecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the offence(s) alleged against an accused.” (emphasis supplied)

The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

The status report mentions that the petitioner and his sister had taken the victim to Jallandhar. The victim was born on 09.05.2008, and was aged 17 years on the date of the incident. Being a minor, she was incapable of giving consent, and the plea taken by the petitioner that the victim had consented will not help him. The victim specifically stated that the petitioner had committed penetrative sexual assault upon her on 16.05.2025, which is duly corroborated by the report of RFSL, which mentions that the petitioner’s DNA was found on the clothes and biological samples of the victim. Therefore, there is sufficient material to connect the petitioner with the commission of the crime.

Petitioner was aged 29 years, and the victim was aged 17 years at the time of occurrence. Thus, there was a huge age gap between the petitioner and the victim. The petitioner took advantage of the victim's minority and committed penetrative sexual assault upon her, which is punishable with life imprisonment. Thus, the penalty is severe. It was laid down by the Hon’ble Supreme Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., (1978) 1 SCC 240: 1978 SCC (Cri) 115: 1977 SCC OnLine SC 327 that when the punishment is severe, the person is not entitled to bail. It was observed at page 244:

“6. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage, and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve a sentence in the event of the Court punishing him with imprisonment. In this perspective, the relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle.

J. indicated that when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment for it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. [ Mod. Law Rev. p. 50 ibid., 1852 I E & B 1] Lord Campbell, C.J., concurred in this approach in that case, and Coleridge J. set down the order of priorities as follows: [Mod. Law Rev. ibid., pp. 50-51]

“I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his appearance at trial It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three elements will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted. In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death.”

It is thus obvious that the nature of the charge is the vital factor, and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue.

Considering the nature of the offence and the severity of the punishment, the petitioner is not entitled to bail.

It was submitted that the prosecution has not completed the evidence, and the petitioner’s right to a speedy trial is being violated. This submission cannot be accepted. The status report shows that the statements of six witnesses have been recorded. The charge sheet was filed on 11.07.2025, and the recording of the statements of six witnesses does not show any delay in the trial.

No other point was urged.

In view of the above, the petitioner is not entitled to bail. Hence, the present petition fails, and it is dismissed.

The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.