Virender Singh, J
1. Applicant-Vikram Singh has filed the present application, under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred
to as ‘BNSS’), with a prayer to release him on bail, during the pendency of the trial, in case FIR No.93 of 2023, dated 09.06.2023, registered
under Section 376 of the Indian Penal Code (hereinafter referred to as the ‘IPC’), and Sections 6 and 8 of the Protection of Children from
Sexual Offences Act (hereinafter referred to as the ‘POCSO Act’), with Police Station Theog, District Shimla, H.P.
2. According to the applicant, he is innocent person and has falsely been implicated, in the present case.
3. As per the applicant, investigation, in the present case, is complete and conclusion of trial of the case will take sufficient long time, as such, no
useful purpose would be served, by keeping him, in the judicial custody, for indefinite period.
4. According to the applicant, he is having deep roots in the society and he has termed the case of the prosecution as false.
5. The bail application has been filed, on the basis of the change in circumstances.
6. In order to buttress her contention, learned counsel, appearing for the applicant, has pointed out that the earlier bail application of the applicant was
dismissed, by this Court, vide order dated 16.11.2023 and thereafter, almost one year has elapsed.
7. In addition to this, it has been argued that out of 28 prosecution witnesses, only 10 prosecution witnesses have been examined and as such, the
chances of conclusion of trial against the applicant, in near future, are not so bright.
8. Apart from this, Ms. Rameshwari Sharma, 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.
9. On the basis of the above facts, a prayer has been made to allow the application.
10. When, put to notice, the police has filed the status report disclosing therein, that on 09.06.2023, FIR No.235/2023, dated 12.4.2023, registered
under Section 376 IPC and Sections 4, 8 and 12 of the POCSO Act, with Police Station Goregaon Mumbai was received at Police Station Theog.
10.1. As per the FIR, registered with Police Station Goregaon, Mumbai, it has been mentioned that the child victim has moved a complaint for
registration of FIR disclosing therein that she is about 15 years of age and permanent resident of the address, as mentioned in the application. Her
father is serving in Air India.
10.2. After passing +1 examination, the child victim along with her family members has come to Himachal Pradesh. The entire family remained in
Himachal Pradesh from 08.04.2023 to 15.04.2023. On 08.04.2023, the entire family reached at Chandigarh, at about 07.30 p.m., through Indigo flight.
10.3. On that day, they stayed at Chandigarh. On the next day, on 09.04.2023, at about 07.00 a.m., they got booked a Swift Dzire No.HR45-D-6069,
through Asia Tours Holidays. From 09.04.2023 to 11.04.2023, they stayed at Manali and on 12.04.2023, they come to Gallu Hills, Kufri and stayed at
Twin Tower Hotel at NH-05. On 13.04.2023, entire family visited Shimla.
10.4. On that day, at about 07.30 p.m., they had gone to Hotel Twin Tower for stay. When, the child victim was alighting down from the vehicle, then,
the driver Aman @Vikram Singh has requested the child victim to note down the mobile number, written on the vehicle. Thereafter, the child victim
has noted down the said phone number.
10.5. On that night, the child victim was apprised that he will come to meet her, after reaching at Hotel, they had requested for meal. After taking their
dinner, at about 10.00 p.m., the child victim has called the driver on WhatsApp call. Thereafter, she had left the room on the pretext of talking to her
friend.
10.6. After coming from the hotel, the driver came to her and requested her to sit in the vehicle. She has further alleged that in the vehicle, she was
raped. Thereafter, the said driver left her back in the hotel. On 14.04.2023, they had gone to Kasauli. On that day also, she was raped by the driver.
10.7. On 15.04.2023, they came to Chandigarh from Kasauli and stayed there for two days. On 17.04.2023, they reached at Mumbai. On repeated
enquiry, made by the mother of the child victim, the whole incident was disclosed to her. Thereafter, they took her to Goregaon Police Station, where,
the report was lodged.
10.8. The child victim was medico legally examined. Since, the incident does not fall within the territorial jurisdiction of Police Station, Goregaon, as
such, FIR was lodged with Police Station, Theog.
10.9. After registration of the FIR, police machinery swung into motion and the investigation has been conducted. During investigation, the documents,
pertaining to the age of the child victim, were also obtained, according to which, her date of birth is 23.05.2007. Â
10.10. The physical evidence, so collected, by the police, was sent to FSL for chemical analysis. The supplementary challan, in the case, was
submitted, in the Court, on 30.09.2023.
10.11. As per the status report, the investigation, in the present case, is complete and the competent Court of law has taken the cognizance. There are
28 prosecution witnesses, out of which, 10 prosecution witnesses have already been examined and the case is now stated to be fixed for 21.01.2025
for recording the evidence of PWs, mentioned at Sr. No.6 and 9, in the main challan and on 22.01.2025 for recording the evidence of PWs, mentioned
at Sr. No.11 and 13, in the main challan.
10.12. Apart from this, the following apprehensions have been expressed, by the police, in case, the applicant is ordered to be released on bail:-
i. Applicant may coerce the witnesses and allure them to depose, in his favour.
ii. Applicant will not be available for the trial.
iii. In case, the applicant is ordered to be released on bail, it will give wrong signal to the society and also encourage similar type of offenders to commit the heinous
crime.
iv. Applicant is the resident of Haryana and being a driver of the taxi, he has committed the heinous offence, against the child victim, aged about 15 years.
11. On the basis of above facts, a prayer has been made to dismiss the application.
12. The earlier bail application, filed by the applicant, was dismissed, by this Court, vide order dated 16.11.2023. Copy of the same has been annexed
with the application.
13. At that time, the charges had not been framed and the case was listed only for consideration on charge. Now, almost after 13 months, the
prosecution could only examine 10 prosecution witnesses and the case is now listed for 21.01.2025 and 22.01.2025 for recording the statements of
only four witnesses.
14. In the present case, there are total 28 prosecution witnesses and considering the pace of the trial, this Court is of the view that the applicant, who
has been arrested, in this case, on 09.06.2023, is liable to be released on bail.
15. The statements of the 10 prosecution witnesses have been recorded, including the child victim, and as such, it can be said that there are change in
circumstances.
16. The applicant cannot be kept in the judicial custody, that too, for the indefinite period, as a matter of punishment, as, pre-trial punishment is
prohibited, under the law.
17. So far as the apprehension of the State that the applicant is the resident of Haryana and may not be available for the trial, in case, ordered to be
released on bail, is concerned, merely the fact that the applicant is the resident of adjoining State, cannot be a ground for dismissing the application, as,
the same is hit by Article 15 of the Constitution of India. Even otherwise, reasonable conditions can be imposed, in case, applicant is ordered to be
released on bail.
18. The mother of the complainant, when joined the proceedings through video conferencing, has also expressed her apprehension about her security,
in case, applicant is ordered to be released on bail. The child victim, as well as, her mother are resident of Mumbai, whereas, the applicant is stated to
be the resident of Haryana. As such, the said apprehension of the complainant is too short to decline the relief to the applicant.
19. Moreover, the chances of conclusion of trial, against the applicant, in near future, are not so bright. As such, no useful purpose would be served,
by keeping the applicant, in judicial custody, that too, for the indefinite period.
20. Considering all these facts, this Court is of the view that the present bail application is liable to be allowed and is accordingly allowed.
21. Consequently, the applicant is ordered to be released on bail in case FIR No.93 of 2023, dated 09.06.2023, registered under Section 376 of the IPC
and Sections 6 and 8 of the POCSO Act, with Police Station Theog, District Shimla, H.P., on his furnishing personal bonds, in the sum of ₹1,00,000/-,
with two sureties of the like amount, to the satisfaction of the learned trial Court.
22. This order, however, shall be subject to the following conditions:
a) The applicant shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of
hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
b) The applicant shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
c) The applicant shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing
such facts to the Court or the Police Officer; and
d) The applicant shall not leave the territory of India without the prior permission of the Court.
e) The applicant is also directed not try to contact the child victim, her mother or any person, acquainted with the facts and circumstances of the present case,
through any means, what to talk to visit their place of resident.â€
23. Considering the peculiar facts and circumstances of the present case, the applicant is directed to intimate the SHO, Police Station Theog, before
visiting Mumbai (the place, where the child victim, along with her mother is residing).
24. 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.
25. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found to be violated
by the applicant.
26. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, Kaithu Jail, Shimla, Himachal Pradesh, through e-
mail, with a direction to enter the date of grant of bail in the e-prison software.
27. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, Kaithu Jail, Shimla,
Himachal Pradesh, is directed to inform this fact to the Secretary, DLSA, Shimla. The Superintendent of Jail, Kaithu Jail, Shimla, 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.