CRMPM/2730/2022 of TEJSAV AWASTHI Vs STATE OF HP on 30 December 2022

IN THE HIGH COURT OF HIMACHAL PRADESHSHIMLA

Cr.MP(M) No. 2730 of 2022.

Decided on : 30th December, 2022.

Tejsav Awasthi ...Petitioner. VersusState of H.P. ....Respondent.

Coram:

The Hon’ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?[1]

For the Petitioner:Mr.KulwantSinghGill,Advocate. For the Respondent:Mr. Desh Raj Thakur, AdditionalAdvocate General.

Satyen Vaidya, Judge (Oral).

Petitioner has prayed for grant of pre-arrestbail in case registered vide FIR No. 193 of 2022, dated14.12.2022, at Police Station Baijnath, District Kangra,H.P., under Sections 376 of the IPC and Sections 4 and 6of the Protection of Children from Sexual Offences Act (forshort “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 investigationthereafter.

2. The case has been registered against thepetitioner on the complaint of victim that she was havingtuitions in the subject of Physics from petitioner inKartikey Institute Baijnath, District Kangra. On therequest of victim, the petitioner had agreed to teach herthe subject of Chemistry also and for such purpose thepetitioner started teaching victim after 5.30 p.m. when allother students would leave the institute. During thisperiod, the petitioner not only indulged in indecentconduct with the victim, but also committed rape on her.Victim further alleged that she had not disclosed theincident on earlier occasion as she was under impressionthat on her attaining the age of majority, the petitionerwould marry her as promised by him.3.Status report filed on behalf of respondentreveals that the investigation is almost complete in the case. From scientific examination of the material collected by the investigating agency nothingincriminating has been found against the petitioner.4. It has been contended on behalf of the petitioner that he is innocent and the complaint by thevictim was motivated. In fact, the victim herself wantedto marry petitioner and on expression of inability by thepetitioner to marry the victim, he was falsely implicated.The petitioner is stated to be preparing for Civil Servicesexamination and it is further contended on his behalf thatin case of arrest of petitioner in the case his entire careerwill be ruined. Petitioner is stated to be permanentresident of Village and Post Office Baijnath, TehsilBaijnath (870), District Kangra, H.P.

5. I have heard learned counsel for the partiesand have also perused the investigation record producedin the Court today.

6. It is revealed from the investigation record that the victim has made a statement under Section 164 ofthe Cr.P.C., before the learned Judicial Magistrate FirstClass and has resiled from earlier stand, on the basis ofwhich FIR was lodged. The investigated agency has alsorecorded the statement of some of the students ofKartikey Institute and none of them has stated that anyincident, as alleged by the victim, had taken place in theinstitute. As noticed above, no scientific evidence isavailable on record to incriminate the petitioner.

7. The aforesaid observations have been madeonly with a view to assess the seriousness and gravity ofallegations made against the petitioner. From thechanged stand of the victim as also other material onrecord, allegations against the petitioner becomedoubtful.

8. Respondent has also not prayed forrequirement of petitioner for custodial interrogation. In Respondent has also not prayed for the given facts and circumstances of the case, no fruitful

purpose shall be served by allowing the petitioner to bekept in custody. Pre-trial incarceration is not the rule.9.Petitioner is permanent resident of Village andPost Office Baijnath, Tehsil Baijnath (870), District Kangra,H.P. There is no likelihood of the petitioner abscondingand fleeing from the course of justice. Petitioner has nocriminal antecedents. Petitioner is aged about 28 yearsand is in his career building stage. The rights ofpetitioner have to be balanced vis-a-vis the allegationslevelled against him, especially taking into considerationthe doubtfulness that has emerged in the allegations.Petitioner has already joined the investigation.

10. Keeping in view the entirety of the facts andcircumstances, the instant petition is allowed and in theevent of arrest of petitioner in case FIR No. 193 of 2022,dated 14.12.2022 under Sections 376 of the IPC andSections 4 and 6 of the Protection of Children from Sexual Offences Act registered at Police Station Baijnath, DistrictKangra, H.P., he shall be released on bail subject to hisfurnishing personal bond in a sum of Rs.25,000/- with onesurety in the like amount to the satisfaction ofArresting/Investigating Officer. This order shall, however, be subject to following conditions:-

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

(ii) That the petitioner shall not directly or indirectly,make any inducement, threat or promise to anyperson acquainted with the facts of the case so as todissuade him from disclosing such facts to the Courtor to nay police officer;make any inducement, threat or promise to anyperson acquainted with the facts of the case so as todissuade him from disclosing such facts to the Courtor 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.

30[th] December, 2022. (jai)

(Satyen Vaidya)Judge