DEEPAK KUMAR vs STATE OF HP
- Court
- High Court of Himachal Pradesh
2026:HHC:37148
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
High Court of H.P.
Cr. MP(M) No.1432 of 2026
Date of Decision: 01.09.2026
_____________________________________________________________
Deepak Kumar .....Petitioner
Versus
State of Himachal Pradesh ..…Respondent
_____________________________________________________________
Coram:
The Hon’ble Mr. Justice Sandeep Sharma, Judge.
1
Whether approved for reporting? Yes.
_____________________________________________________________
For the Petitioner: Mr. Anirudh R.H. Sharma, Advocate.
For the Respondent: Mr. Rajan Kahol & Mr. Vishal
Panwar, Additional Advocates
General and Mr. Ravi Chauhan & Mr.
Anish Banshtu, Deputy Advocates
General.
ASI Pradeep Kumar, PS Dharampur,
District Solan, Himachal Pradesh,
present along with record.
_____________________________________________________________
Sandeep Sharma, J. (Oral)
Bail petitioner namely Deepak Kumar, who is
behind the bars since 2.8.2025, has approached this Court in
the instant proceedings filed under Section 483 Bharatiya
Nagarik Suraksha Sanhita, 2023, for grant of regular bail in
case FIR No.137/2025, dated 02.08.2025, under Sections 62,
65(1), 76, 115(2), 45, 132(2) and 127 of Bharatiya Nyaya
Sanhita, 2023 and Sections 4, 12, 17 and 18 of Protection of
Children from Sexual Offences Act, registered at PS
Dharampur, District Solan, Himachal Pradesh.
1
Whether reporters of the local papers may be allowed to see the judgment?
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2. Respondent/State has filed status report and ASI
High Court of H.P.
Pradeep Kumar, has come present along with record. Record
perused and returned.
3. Victim-prosecutrix has also come present along
with her elder sister. She states that she does not want to
engage any lawyer, rather she will adopt the arguments
advanced by the learned Deputy Advocate General appearing
on behalf of the respondent-State.
4. Close scrutiny of status report/record reveals that
on 02.08.2025, victim/prosecutrix, aged 14 years 9 months,
lodged a complaint at Police Station Dharampur, stating
therein that though she lives in Manali, but had come to Solan
on account of surgery of her sister. She stated that since her
schools were closed with effect from 12.08.2025 at Manali, she
was living with her sister in a rented accommodation at Solan
for a period of one month. She alleged that on 01.08.2025,
Golu alias Kushal, who is her friend, gave her a telephonic call
and also sent messages to come along with him. She alleged
that at 12:00 PM, she along with her friend Kushal, who was
already present on the road with vehicle, went towards Sukki
Johari, from where, above named Golu alias Kushal took her
to a room of his friend. She alleged that after 10 minutes of her
arrival in the room, one unknown person appeared, who
subsequently disclosed his name to be Deepak i.e. present bail
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petitioner. She alleged that aforesaid person was under the
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influence of liquor and gave money to his friend Golu alias
Kushal to bring food and after taking advantage of her being
alone in the room, he attempted to sexually assault her. She
alleged that above named person attempted to unclothe her,
but she succeeded in coming out of the room and bolted
herself inside the toilet. She alleged that she raised hue and
cry and thereafter, one male and female came from the
neighbourhood and rescued her. In the aforesaid background,
FIR came to be lodged against present bail petitioner as well as
co-accused Golu alias Kushal. Golu alias Kushal, who is a
juvenile, already stands enlarged on bail on 11.8.2025,
whereas present petitioner is behind bars since 02.08.2025.
5. Since challan stands filed in the competent Court
of law and nothing remains to be recovered from him, prayer
has been made on behalf of the petitioner for grant of regular
bail.
6. Mr. Anirudh R.H. Sharma, learned counsel
representing the petitioner states that more than one year has
passed, but till date, prosecution has not been able to record
the statement of victim/prosecutrix, who otherwise, despite
repeated notices issued by the competent Court of law, has
failed to come present, as a result thereof, petitioner is behind
bars for an indefinite period. He states that otherwise also,
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bare perusal of statement of victim/prosecutrix recorded
High Court of H.P.
under Section 183 BNSS nowhere suggests that harm, if any,
was caused to her by the petitioner, rather she was brought to
the room of the present bail petitioner by co-accused Kushal
alias Golu, who already stands enlarged on bail. While
referring to Section 35(2) of POCSO Act, 2012, learned counsel
states that Special Court is under obligation to complete the
trial as far as possible within a period of one year from the
date of taking cognizance of the offence, but in the case at
hand, mandate of aforesaid provision of law has not been
complied with and as such, petitioner is entitled to be enlarged
on bail. He states that since considerable time is likely to be
consumed in conclusion of trial, no fruitful purpose would be
served by keeping the bail petitioner behind bars.
7. While fairly admitting factum with regard to filing
of challan in the competent Court of law, Mr. Ravi Chauhan,
learned Deputy Advocate General states that though nothing
remains to be recovered from the petitioner, but keeping in
view the gravity of offence alleged to have been committed by
him, he does not deserve any leniency. He states that there is
overwhelming evidence adduced on record suggestive of the
fact that bail petitioner attempted to sexually assault the
victim/prosecutrix, who at the relevant time was minor and as
such, no illegality can be said to have been committed by
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police by registering FIR under relevant provisions of law. He
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states that prosecution has already examined two formal
witnesses and for recording the statement of remaining
th th th th
witnesses, matter has been fixed on 17 , 18 , 19 and 20
November 2026, and as such, prayer made on behalf of the
petitioner for grant of regular bail during pendency of trial
cannot be accepted. However, learned Deputy Advocate
General fairly admits that despite notice, victim/prosecutrix
has failed to come present before the Court below for getting
her statement recorded.
8. Having heard learned counsel for the parties and
perused material available on record, this Court finds that
victim/prosecutrix, who at the relevant time was minor, was
brought to the room of the present bail petitioner by co-
accused Golu alias Kushal and present bail petitioner, who is
a taxi driver, reached his room after 10 minutes of the arrival
of the victim/prosecutrix and co-accused Golu alias Kushal.
As per own statement of victim/prosecutrix recorded under
Section 183 BNSS, 2023, present bail petitioner committed no
wrong with her, but she also alleged that while her friend Golu
alias Kushal had gone to fetch food, present bail petitioner
forcefully pulled her pants and thereafter attempted to
sexually assault her, but she rescued herself by locking herself
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in the toilet. No doubt, bail petitioner is accused of heinous
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crime, punishable under the relevant provisions of law as
detailed herein above, but this Court cannot lose sight of the
fact that he is behind bars for more than one year and till
date, prosecution has not been able to record the statement of
victim/prosecutrix. As per own case of prosecution, as has
been fairly admitted by learned Deputy Advocate General,
victim/prosecutrix, despite having received notice, failed to put
in appearance before the Court below for getting her statement
recorded. In the case at hand, challan was filed on
29.08.2025. If it is so, trial was required to be concluded
within one year in terms of Section 35 of POCSO Act. In the
instant case, charge was framed on 05.06.2026. After framing
of charge, though dates repeatedly came to be fixed for
recording the statement of prosecution witnesses, but fact
remains that till date, prosecution has been able to record the
statements of only two formal witnesses.
9. Victim/prosecutrix, who has come present before
this Court to oppose the bail of the petitioner, has admittedly
failed to come present before the Court below for getting her
statement recorded, as a result thereof, petitioner is behind
bars for an indefinite period, that too without his being held
guilty. Though the bail petitioner is accused of heinous crime,
but guilt, if any, of his is yet to be established on record by the
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prosecution by leading cogent and convincing evidence. As
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such, this Court sees no reason to let the bail petitioner
incarcerate in jail for an indefinite period during trial,
especially when nothing remains to be recovered from him.
10. At this stage, this Court has to take note of Section
35(2) of POCSO Act, 2012, which reads as under:
“35(2) The Special Court shall complete the trial,
as far as possible, within a period of one year from
the date of taking cognizance of the offence.”
11. Bare perusal of aforesaid provision of law clearly
reveals that Special Court is under obligation to complete the
trial as far as possible within a period of one year from the
date of taking cognizance of the offence. In the instant case,
more than one year has passed, but till date, prosecution has
not been able to record the statement of victim/prosecutrix.
Though status report reveals that Court, after having recorded
the statements of two formal witnesses, has fixed the matter in
the month of November for recording the statement of
remaining witnesses, but once it took almost one year for
prosecution to record the statements of two formal witnesses,
coupled with the fact that till date prosecution has not been
able to record the statement of victim/prosecutrix, this Court
has reason to believe that considerable time is likely to be
consumed in conclusion of trial, as such, there appears to be
no justification to let the bail petitioner incarcerate in jail for
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an indefinite period during trial, which would not only amount
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to pre-trial conviction, but would also violate fundamental
right of life and liberty guaranteed under Article 21 of the
Constitution of India.
12. As per Section 35(1) of POCSO Act, the evidence of
child shall be recorded within a period of thirty days of the
Special Court taking cognizance of offence and reasons for
delay, if any, shall be recorded by the Special Court. In the
instant case, statement of child victim is yet to be recorded.
13. Hon’ble Supreme Court in Alakh Alok Srivastava
v. Union of India , (2018) 17 SCC 291: (2019) 4 SCC (Cri) 184:
2018 SCC OnLine SC 478 observed that the trial of cases
registered under POCSO Act be conducted expeditiously.
Hon'ble Apex Court observed as under:
“25.3. The instructions should be issued to the Special
Courts to fast-track the cases by not granting
unnecessary adjournments and following the procedure
laid down in the POCSO Act and thus complete the trial in
a time-bound manner or within a specific time-frame
under the Act.”
14.
From the facts narrated hereinabove, it is clear
that learned trial Court has not been able to conclude trial
within the time provided under the Act and trial is not likely to
be concluded in near future.
15. In Mohd. Muslim v. State (NCT of Delhi), 2023
SCC OnLine SC 352, Hon'ble Apex Court held the right to
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speedy trial to be constitutional right of an accused. The right
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of bail is curtailed on the premise that the trial would be
concluded expeditiously. Hon'ble Apex Court held as under:
“13. When provisions of law curtail the right of an accused to
secure bail, and correspondingly fetter judicial discretion
(like Section 37 of the NDPS Act, in the present case), this
court has upheld them for conflating two competing values,
i.e., the right of the accused to enjoy freedom, based on the
presumption of innocence, and societal interest - as observed
in Vaman Narain Ghiya v. State of Rajasthan, [2008] 17 SCR
369: (2009) 2 SCC 281 ('the concept of bail emerges from the
conflict between the police power to restrict liberty of a man
who is alleged to have committed a crime, and presumption
of innocence in favour of the alleged criminal....'). They are,
at the same time, upheld on the condition that the trial is
concluded expeditiously. The Constitution Bench in Kartar
Singh v. State of Punjab, [1994] 2 SCR 375: (1994) 3 SCC
569 made observations to this effect. In Shaheen Welfare
Association v. Union of India, [1996] 2 SCR 1123: (1996) 2
SCC 616 again, this court expressed the same sentiment,
namely that when stringent provisions are enacted,
curtailing the provisions of bail, and restricting judicial
discretion, it is on the basis that investigation and trials
would be concluded swiftly. The court said that
Parliamentary intervention is based on:
a conscious decision has been taken by the legislature to
sacrifice to some extent, the personal liberty of an under trial
accused for the sake of protecting the community and the
nation against terrorist and disruptive activities or other
activities harmful to society, it is all the more necessary that
investigation of such crimes is done efficiently and an
adequate number of Designated Courts are set up to bring to
book persons accused of such serious crimes. This is the
only way in which society can be protected against harmful
activities. This would also ensure that persons ultimately
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found innocent are not unnecessarily kept in jail for long
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periods.”
16. The Court highlighted the effects of pre-trial
detention and the importance of speedy trial as under:
“22. Before parting, it would be important to reflect that laws
which impose stringent conditions for the grant of bail, may
be necessary in the public interest; yet, if trials are not
concluded in time, the injustice wrecked on the individual is
immeasurable. Jails are overcrowded and their living
conditions, more often than not, appalling. According to the
Union Home Ministry's response to Parliament, the National
Crime Records Bureau had recorded that as of 31st
December 2021, over 5,54,034 prisoners were lodged in jails
against a total capacity of 4,25,069 lakhs in the
country[National Crime Records Bureau, Prison Statistics in
India https://ncrb. gov. in/sites/default/files/P SI-202
1/Executive ncrb Summary-2021.pdf]. Of these 122,852
were convicts; the rest 4,27,165 were undertrials.
23. The danger of unjust imprisonment, is that inmates are
at risk of 'prisonisation' a term described by the Kerala High
Court in A Convict Prisoner v. State , 1993 Cri LJ 3242 as a
radical transformation ' whereby the prisoner:
'loses his identity. He is known by a number. He loses
personal possessions. He has no personal relationships.
Psychological problems result from 7 loss of freedom, status,
possessions, dignity any autonomy of personal life. The
inmate culture of prison turns out to be dreadful. The
prisoner becomes hostile by ordinary standards. Self-
perception changes. '
24. There is a further danger of the prisoner turning to
crime, 'as crime not only turns admirable but the more
professional the crime, more honour is paid to the
criminal'[Working Papers - Group on Prisons & Borstals -
1966 U.K.] (also see Donald Clemmer's 'The Prison
Community' published in 1940[Donald Clemmer, The Prison
Community (1968) Holt, Rinehart & Winston, which is
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referred to in Tomasz Sobecki, 'Donald Clemmer's Concept of
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Prisonisation', available at:
https://www.tkp.edu.pl/wpcontent/uploads/2020/12/Sobe
cki_s klad.pdf (accessed on 23rd March 2023).]).
Incarceration has further deleterious effects - where the
accused belongs to the weakest economic strata: immediate
loss of livelihood, and in several cases, scattering of families
as well as loss of family bonds and alienation from society.
The courts, therefore, have to be sensitive to these aspects
(because in the event of an acquittal, the loss to the accused
is irreparable), and ensure that trials - especially in cases,
where special laws enact stringent provisions, are taken up
and concluded speedily.”
17. In Shaheen Welfare Assn . v. Union of India ,
(1996) 2 SCC 616: 1996 SCC (Cri) 366 Hon'ble Apex Court
held that a person cannot be kept behind the bars when there
is no prospect of trial being concluded expeditiously. It was
observed at page 621 as under:
“8. It is in this context that it has become necessary to grant
some relief to those persons who have been deprived of their
personal liberty for a considerable length of time without any
prospect of the trial being concluded in the near future.
Undoubtedly, the safety of the community and 8 the nation
needs to be safeguarded looking to the nature of the offences
these undertrials have been charged with. But the ultimate
justification for such deprivation of liberty pending trial can
only be their being found guilty of the offences for which they
have been charged. If such a finding is not likely to be
arrived at within a reasonable time some relief becomes
necessary.”
18. Similarly, it was laid down by the Hon’ble Supreme
Court in Jagjeet Singh v. Ashish Mishra , (2022) 9 SCC 321:
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(2022) 3 SCC (Cri) 560: 2022 SCC OnLine SC 453 that no
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accused can be subjected to unending detention pending trial.
It was observed at page 335 as under:
“40. Having held so, we cannot be oblivious to what has been
urged on behalf of the respondent-accused that cancellation
of bail by this Court is likely to be construed as an indefinite
foreclosure of his right to seek bail. It is not necessary to
dwell upon the wealth of case law which, regardless of the
stringent provisions in a penal law or the gravity of the
offence, has time and again recognised the legitimacy of
seeking liberty from incarceration. To put it differently, no
accused can be subjected to unending detention pending
trial, especially when the law presumes him to be innocent
until proven guilty. Even where statutory provisions
expressly bar the grant of bail, such as in cases under the
Unlawful Activities (Prevention) Act, 1967, this Court has
expressly ruled that after a reasonably long period of
incarceration, or for any other valid reason, such stringent
provisions will melt down, and cannot be measured over and
above the right of liberty guaranteed under Article 21 of the
Constitution (see Union of India v. K.A. Najeeb [Union of
India v. K.A. Najeeb, (2021) 3 SCC 713, paras 15 and 17] ).”
19. Hon’ble Supreme Court recently in Javed Gulam Nabi
Shaikh Vs. State of Maharashtra and Anr . Criminal Appeal
No. 2787 of 2024 decided on 03.07.2024 observed that the
right to speedy trial of the offenders facing criminal charges is
an important facet of Article 21 of the Constitution of India
and inordinate delay in the conclusion of the trial entitles the
accused to grant of bail. Hon'ble Apex Court held as under:
“12 Long back, in Hussainara Khatoon v. Home Secy., the
State of Bihar reported in (1980) 1 SCC 81, this court had
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declared that the right to speedy trial of offenders facing
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criminal charges is “implicit in the broad sweep and content
of Article 21 as interpreted by this Court”. Remarking that a
valid procedure under Article 21 is one which contains a
procedure that is “reasonable, fair and just” it was held that:
“Now obviously procedure prescribed by law for depriving a
person of liberty cannot be “reasonable, fair or just” unless
that procedure ensures a speedy trial for determination of
the guilt of such person. No procedure which does not
ensure a reasonably quick trial can be regarded as
“reasonable, fair or just” and it would fall foul of Article 21.
There can, therefore, be no doubt that speedy trial, and by
speedy trial we mean reasonably expeditious trial, is an
integral and essential part of the fundamental right to life
and liberty enshrined in Article 21. The question which
would, however, arise is as to what would be the
consequence if a person accused of an offence is denied a
speedy trial and is sought to be deprived of his liberty by
imprisonment as a result of a long delayed trial in violation
of his fundamental right under Article 21.”
13 The aforesaid observations have resonated, time and
again, in several judgments, such as Kadra Pahadiya & Ors .
v. State of Bihar reported in (1981) 3 SCC 671 and Abdul
Rehman Antulay v. R.S. Nayak reported in (1992) 1 SCC
225. In the latter, the court re-emphasized the right to
speedy trial and further held that an accused, facing
prolonged trial, has no option: “The State or complainant
prosecutes him. It is, thus, the obligation of the State or the
complainant, as the case may be, to proceed with the case
with reasonable promptitude. Particularly, in this country,
where the large majority of accused come from poorer and
weaker sections of the society, not versed in the ways of law,
where they do not often get competent legal advice, the
application of the said rule is wholly inadvisable. Of course,
in a given case, if an accused demands a speedy trial and yet
he is not given one, may be a relevant factor in his favour.
But we cannot disentitle an accused from complaining of
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infringement of his right to a speedy trial on the ground that
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he did not ask for or insist upon a speedy trial.”
20. Hon'ble Apex Court in Javed Gulam Nabi Shaikh supra
has observed that if the State or the prosecuting agency does
not have wherewithal to protect fundamental right of accused
to speedy trial, as enshrined under Art. 21 of the Constitution
of India, it should not oppose plea for bail on the ground that
offence allegedly committed is heinous. Hon'ble Apex Court
referred to its judgments in Union of India v. K.A. Najeeb ,
(2021) 3 SCC 713, Satender Kumar Antil v. Central Bureau
of Investigation , (2022) 10 SCC 51.
21. In Manish Sisodia v. Enforcement Directorate ,
2024 SCC OnLine SC 1920, placing reliance upon Javed
Gulab Nabi Shaikh reiterated the right of an accused to
speedy trial. In Jalaluddin Khan v. Union of India , 2024 SCC
OnLine SC 1945, Hon'ble Apex Court enlarged the accused on
bail, on the ground of inordinate delay. In Prem Prakash v.
Union of India through the Directorate of Enforcement ,
Petition for Special Leave to Appeal (Crl.) No. 5416 of 2024,
Hon'ble Apex Court proceeded to enlarge the accused on bai,
on the ground of delay in conclusion of trial, while relying
upon Ramkripal Meena v. Directorate of Enforcement , SLP
(Crl.) No. 3205 of 2024 dated 30.7.2024, Javed Gulam Nabi
Shaikh supra, Manish Sisodia .
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22. In the aforesaid judgments, Hon'ble Apex Court
High Court of H.P.
having taken note of all judgments passed in recent times,
categorically held that bail is rule and jail is an exception. If all
the judgments taken note herein above are read in
conjunction, Hon'ble Apex Court has categorically held that
court, while considering prayer for grant of bail, may not be
impressed with arguments advanced by the prosecution, that
charge against the person seeking bail is serious, but in case,
court finds that on account of inordinate delay in conclusion of
trial, fundamental right of speedy trial is being violated, it
should proceed to grant bail. No doubt, in the case at hand,
charge against the petitioner is serious, but there is no denial
to the fact that bail petitioner is languishing in jail for more
than eleven months, despite his not being held guilty.
23. In the aforesaid judgment, Hon’ble Apex Court has
held that while considering the prayer for grant of bail, Courts
are expected to appreciate the legislative policy against grant of
bail but the rigours of such provisions will melt down where
there is no likelihood of trial being completed within a
reasonable time and the period of incarceration already
undergone has exceeded a substantial part of the prescribed
sentence.
24. Consequently, in view of above, bail petitioner has
carved out a case for himself, as such, present petition is
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allowed. Bail petitioner is ordered to be enlarged on bail,
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subject to furnishing bail bonds in the sum of 1.00 Lakh
Rs.
with one surety in the like amount, to the satisfaction of the
learned Trial Court, besides the following conditions:
“(a) He 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) He shall not tamper with the prosecution evidence
nor hamper the investigation of the case in any
manner whatsoever;
(c) He shall not make any inducement, threat or
promises to any person acquainted with the facts of
the case so as to dissuade him/her from disclosing
such facts to the Court or the Police Officer; and
(d) He shall not leave the territory of India without the
prior permission of the Court.”
25. It is clarified that if the petitioner misuses the
liberty or violates any of the conditions imposed upon him, the
investigating agency shall be free to move this Court for
cancellation of the bail.
26. Any observations made hereinabove shall not be
construed to be a reflection on the merits of the case and shall
remain confined to the disposal of this petition alone. The
petition stands accordingly disposed of.
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A downloaded copy of this order shall be accepted
High Court of H.P.
by the learned trial Court, while accepting the bail bonds from
the petitioner and in case, said court intends to ascertain the
veracity of the downloaded copy of order presented to it, same
may be ascertained from the official website of this Court.
(Sandeep Sharma)
Judge
st
1 September, 2026
manjit
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