CRMPM/2730/2022 on 30 December 2022

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MP(M) No. 2730 of 2022. Decided on : 30

th December, 2022. Tejsav Awasthi ...Petitioner.

Versus State of H.P.

....Respondent.

Coram:

The Hon’ble Mr. Justice Satyen Vaidya, Judge. Whether approved for reporting?1 For the Petitioner: Mr.

Kulwant

Singh

Gill, Advocate. For the Respondent: Mr. Desh Raj Thakur, Additional Advocate General.

Satyen Vaidya, Judge (Oral). Petitioner has prayed for grant of pre-arrest bail in case registered vide FIR No. 193 of 2022, dated 14.12.2022, at Police Station Baijnath, District Kangra, H.P., under Sections 376 of the IPC and Sections 4 and 6 of the Protection of Children from Sexual Offences Act (for short “POCSO Act”). Petitioner was admitted to interim 1 Whether reporters of the local papers may be allowed to see the judgment?

bail on 15.12.2022. He has joined the investigation thereafter.

2. The case has been registered against the petitioner on the complaint of victim that she was having tuitions in the subject of Physics from petitioner in Kartikey Institute Baijnath, District Kangra. On the request of victim, the petitioner had agreed to teach her the subject of Chemistry also and for such purpose the petitioner started teaching victim after 5.30 p.m. when all other students would leave the institute. During this period, the petitioner not only indulged in indecent conduct with the victim, but also committed rape on her. Victim further alleged that she had not disclosed the incident on earlier occasion as she was under impression that on her attaining the age of majority, the petitioner would marry her as promised by him.

3. Status report filed on behalf of respondent reveals that the investigation is almost complete in the …2…

case. From scientific examination of the material collected by the investigating agency nothing incriminating has been found against the petitioner.

4. It has been contended on behalf of the petitioner that he is innocent and the complaint by the victim was motivated. In fact, the victim herself wanted to marry petitioner and on expression of inability by the petitioner to marry the victim, he was falsely implicated. The petitioner is stated to be preparing for Civil Services examination and it is further contended on his behalf that in case of arrest of petitioner in the case his entire career will be ruined. Petitioner is stated to be permanent resident of Village and Post Office Baijnath, Tehsil Baijnath (870), District Kangra, H.P.

5. I have heard learned counsel for the parties and have also perused the investigation record produced in the Court today. …3…

6. It is revealed from the investigation record that the victim has made a statement under Section 164 of the Cr.P.C., before the learned Judicial Magistrate First Class and has resiled from earlier stand, on the basis of which FIR was lodged. The investigated agency has also recorded the statement of some of the students of Kartikey Institute and none of them has stated that any incident, as alleged by the victim, had taken place in the institute. As noticed above, no scientific evidence is available on record to incriminate the petitioner.

7. The aforesaid observations have been made only with a view to assess the seriousness and gravity of allegations made against the petitioner. From the changed stand of the victim as also other material on record, allegations against the petitioner become doubtful.

8. Respondent has also not prayed for requirement of petitioner for custodial interrogation. In …4…

the given facts and circumstances of the case, no fruitful purpose shall be served by allowing the petitioner to be kept in custody. Pre-trial incarceration is not the rule.

9. Petitioner is permanent resident of Village and Post Office Baijnath, Tehsil Baijnath (870), District Kangra, H.P. There is no likelihood of the petitioner absconding and fleeing from the course of justice. Petitioner has no criminal antecedents. Petitioner is aged about 28 years and is in his career building stage. The rights of petitioner have to be balanced vis-a-vis the allegations levelled against him, especially taking into consideration the doubtfulness that has emerged in the allegations. Petitioner has already joined the investigation.

10. Keeping in view the entirety of the facts and circumstances, the instant petition is allowed and in the event of arrest of petitioner in case FIR No. 193 of 2022, dated 14.12.2022 under Sections 376 of the IPC and Sections 4 and 6 of the Protection of Children from Sexual …5…

Offences Act registered at Police Station Baijnath, District Kangra, H.P., he shall be released on bail subject to his furnishing personal bond in a sum of Rs.25,000/- with one surety in the like amount to the satisfaction of Arresting/Investigating Officer. This order shall, however, be subject to following conditions:-

(i) That the petitioner shall make himself available for investigation as and when required.

(ii) That the petitioner shall 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 from disclosing such facts to the Court or to nay police officer;

(ii) That the petitioner shall not leave the country without the prior permission of the Court.

11. However, it is made clear that the observations made hereinabove shall have no bearings on the merit of the case and shall be construed for the disposal of the present petition only.

(Satyen Vaidya) Judge 30th December, 2022.

(jai)

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