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Judgment
Vivek Singh Thakur, J
Petitioner has approached this Court, invoking provisions of Section 439 Cr.P.C., seeking regular bail in case FIR No. 98 of 2022, dated 10.6.2022,
registered in Police Station Dharampur, District Solan, H.P. under Sections 354-A, 354, 376(3), 376(2)F of the Indian Penal Code (for short
‘IPC’) and Sections 6 and 10 of Protection of Children from Sexual Offences Act, 2012 (for short ‘POCSO Act’).
Status Report stands filed. Record was also made available.
Petitioner has also placed a certificate on record, whereby he has been given State Level Teachers Award-2020 for doing extra-ordinary work for
characteristic, physical and cultural development of students. A Pen Drive has also been placed on record, allegedly having conversation of someone
on behalf of complainant with relative of the petitioner making offer for amicable settlement.
Prosecution case is that on 10.6.2022 an e-mail bearing rapat No. 15 in Daily Diary dated 10.6.2022 was received in the Police Station, Dharampur
from Police Chowki Subathu, informing that one Devinder Kumar had submitted a complaint about teasing the school girls by DPE, posted in
Government Girls School, Subathu, during training of Yoga, stating therein that complainant was a wholesale businessman and his daughter, studying in
9th Class, on 9.6.2022, after returning from the School, told her mother that since so many days, their DPE sir, in the School used to tease her and
other 9 girls students during Yoga learning. The complainant’s wife disclosed it to him. Thereafter complainant alongwith parents of other girls
met Principal of School in his office, who assured Departmental inquiry on the issue. All girls were stated to be under stress and fear due to
inappropriate conduct of DPE as he, with ulterior motive and ill-intention, had been touching body parts of girls while instructing Yoga.
On the basis of aforesaid complaint and inquiry, FIR under Section 354-A of IPC and Section 8 of POCSO Act was registered. Thereafter
statements of victims were recorded under Section 161 Cr.P.C. and they were medically examined in CHC Dharampur. From the statements of
victims it transpired that petitioner, on the pretext of improving the postures and stretching, used to touch their private parts and insert his figure in
private part and petitioner used to wear a torn lower without wearing underwear, exposing his private part to girls. Torn lower has been recovered
from the Almirah kept in sports room of the school.
During investigation written complaints submitted by victim girls to Sexual Harassment Committee and a communication sent by one victim girl to
her elder sister, were taken into possession and statements of victim girls were also recorded under Section 164 Cr.P.C. before the Magistrate. As
per certificates of victims, all victims are of less than 16 years of age. On the basis of statements of victims, Sections 354, 376(3), 376(F) of IPC and
Sections 6 and 10 of POCSO Act, attracted in the case, were also incorporated and Section 8 of POCSO Act was omitted.
In the communication sent by one victim to her elder sister, victim wrote that ‘didi, sir was too mean as he put his hand on her lower private part
and thereafter asked that she was feeling good by saying that when it would be in heat, then she would enjoy it and for that reason she was resisting
direction of her mother to attend Yoga classes.
In the complaints submitted to the Principal, it has been stated by victims that they used to attend Yoga classes on call of petitioner and during
classes of Yoga, sir used to touch their private parts. Petitioner used to lay down the girls on the table on the pretext of improving flexibility of body by
stretching and used to touch their body inappropriately, and touch of body parts of petitioner without undergarments was very embarrassing for them
and he used to ensure touching of his stomach with the girls and because of this sometimes they missed the Yoga class but next day petitioner used to
compel girls to attend Yoga class. At the time of stretching, petitioner used to ask about part where girls were feeling pain and irrespective of location
of pain pointed out by the girls, he used to touch their private part and to say that he was not able to identify or catch their nerve and for that he had to
open their trouser, and on the pretext of helping back bending, petitioner used to touch his private part with body of girls by asking the girls for more
back bending. He used to massage private parts of girls on the pretext of increasing flexibility without pain. He used to sit in front of girls stretching his
legs in such a manner that his private part would visible to the girls. Whenever, it was brought in his notice he asked them to look forward and
whenever girls used to close their eyes, petitioner forced them to open their eyes at that time by insisting to do Yog Aasan with open eyes.
In their statements recorded before the Magistrate, victims have re-iterated the allegations in same fashion. In their statements, recorded before the
Magistrate, under Section 164 Cr.P.C., victims reiterated the allegations in the same fashion.
After registration of FIR, petitioner had approached this Court seeking anticipatory bail under Section 438 Cr.P.C. by filing Cr.MP(M) No. 1279 of
2022 which was dismissed vide order dated 1.8.2022. Thereafter, petitioner surrendered and was arrested and since then he is behind the bars. After
completion of investigation, challan was presented in Court on 5.8.2022 and supplementary challan was presented on 26.11.2022. According to
information made available to Court, out of 48 witnesses, 23 witnesses have been examined and one witness has been given up and 24 witnesses are
yet to be examined. Next dates for recording the statements of prosecution witnesses are fixed on 21st and 22nd April, 2025. Petitioner is behind the
bars since last more than two years.
11 Petitioner after arrest had approached the Additional District & Sessions Judge, Fast Track, Special Court, (POCSO) Solan by filing Bail
Application No. 83-S/22 of 2022 on 24.8.2022 under Section 438 Cr.P.C. which was dismissed on 16.9.2022.
12 Petitioner by filing Cr.MP(M) No. 499 of 2023 had approached this Court seeking regular bail by filing petition under Section 439 Cr.P.C. The said
petition was dismissed on 27th June, 2023.
13 Petitioner had again approached the Additional District & Sessions Judge, Fast Track Special Court (POCSO) Solan by filing Bail Application No.
46-S/22 of 2024 on 28th February, 2024 which was dismissed on 22nd March, 2024.
14 Now, the petitioner has approached this Court by filing this petition/application on the ground that petitioner is behind the bars since last more than 2
years and as per prosecution case, there are 10 victims/minor girls alleged to have been subjected to sexual assault by petitioner and all of them have
been examined. Except one, all other victims have unequivocally deposed contrary to prosecution case by stating that petitioner had not done anything
wrong with them and some of witnesses have admitted it to be correct that applications/complaints, written by victim(s), were written by them at the
instance of other teachers. It has been further stated that only child witness PW2 Miss ‘T’ had deposed against the petitioner but she also
stated that she was subjected to inappropriate touching of body parts by petitioner on 8.6.2022 whereas petitioner, on 8th, 9th and 10th of June, 2022,
was officially deputed to the Deputy Director’s Office at Solan and thus was not present in the school on 8th June, 2022.
15 It has been further submitted that all parents of students and school teachers, cited as witnesses in prosecution case have been examined. It has
been further submitted that including parents, teachers and victims, almost all important witnesses have been examined and as a matter of fact, link
witnesses who have performed their respective role in completion of investigation are left to be examined. It has been submitted that petitioner, for his
commendable work, was honoured with State Award on 5.9.2020 by Hon’ble Education Minister of Himachal Pradesh for physical, cultural and
characteristic development of students made for his dedication towards the personality development of students. Further that one student Promila had
referred the petitioner as ‘Farishta’ in her written communication. It is the case of petitioner that he had participated as Coach (Yoga) in 60th
National School Yoga Championship/Tournament at Ahmednagar Gujarat and he was Head of Delegation in 59th National Yoga Championship (Girls)
under-19 and since 1999 till the registration of present case, no such allegation had ever been leveled by anybody at any point of time and present case
has been concocted against him to harass him as immediately after receiving the complaints of students, one person claiming him speaking from
Human Right Commission had called one Naval Kishore Sharma, a relative of petitioner to settle the issue.
16 Learned Additional Advocate General has submitted that as many as 10 victim students had made complaint against the petitioner and they also
reiterated such allegation in presence of their parents on subsequent date when parents were called by the Principal to the school and victims had also
made similar statements under Section 164 Cr.P.C. before the Magistrate and, impact of their deposition in the Court contrary to earlier statements is
yet to be assessed by the Trial Court at appropriate time and, therefore, it has been submitted that keeping in view the nature and gravity of offence,
petitioner is not entitled to be enlarged on bail.
17 Learned counsel for petitioner has submitted that most of the victims, i.e. 9 out of 10, have stated that petitioner had not committed any wrong act
with them and though they have admitted recording of statements before the Magistrate under Section 164 Cr.P.C. but except signatures thereon they
have not admitted the contents of their such statements recorded under Section 164 Cr.P.C. before the Magistrate. It is also submitted on behalf of
petitioner that it has also come in statements of victims, in their cross examination, that all depositions made by them were made at the instance of
their teachers and, therefore, it has been contended that in such situation, petitioner deserves to be enlarged on bail.
18 He has further submitted that it has also come on record that complaints were got drafted and dictated by teachers who were not in good relations
with petitioner and all documents relied upon by police are fabricated and a false story has been concocted against the petitioner.
19 It has been submitted on behalf of petitioner that he is having no history of criminal antecedents nor any other case is pending against him and he is
a local person and, thus, there is no possibility of his fleeing from justice rather, petitioner himself is interested for early completion of trial because as
per his belief, for his positive deeds, he is likely to be acquitted for no evidence against him.
20 Learned counsel for the petitioner has submitted that in the medical examination of the victims, there is nothing to implicate the petitioner under
Section 376 IPC or under Section 6 of POCSO Act. There is no threat not to disclose the incident. There is no penetration or any physical harm to
any victim. The communication claimed to be written by one of the victim to her sister is not authentic document, as it bears no date, no identity of
scribe or recipient has been mentioned thereon. Further that the statements indicate that girls have been tutored to depose against the petitioner to
implicate him in a false case as there are more than 50 students in the class, but allegations have been leveled only by ten students. Other students
have not been associated to verify the facts and it has been further submitted that petitioner is teaching Yoga class since 1999 and his students have
performed well at State level and National level, details of such ten students have been given in para 4 of the application. He has further stated that his
work has been appreciated by SMC Kawarag.
21 Learned Additional Advocate General has submitted that the parents of victim girls reported the matter to the Principal and thereafter to the Police
and they have taken a risk of exposing their girl children in the Courts, who are of adolescent age, but these parents or students have no enmity with
the petitioner and they are not going to be benefited in any manner and that all 50 students were not attending Yoga class and further that it is not
improbable that every person would not like to complaint or expose his girl child by raising such issue publicly and, therefore, complaint made by ten
students out of more students attending the class is not a ground for rejecting the version of victims, who not only narrated the incident to their parents
and gave in writing to Principal, but also re-iterated the same complaint before the Magistrate at the time of recording their statements under Section
164 Cr.P.C. Further that parents of girls have not only made complaints to Principal and Police, but also allowed victims to be medically examined
which reflects the intensity of mental suffering being faced by victims as well as their parents compelling them to complain the matter irrespective of
odd situations faced by victims. It has further been stated that matter is under investigation and there is unrest in society, and further that past history
of achieving certificates and good performance by the students at State level and National level, does not provide immunity to the petitioner for
committing any offence or to exploit adolescent girls physically or otherwise and/or entitle him for anticipatory bail.
22 It has been further submitted by learned Additional Advocate General that petitioner was enlarged on temporary bail on 13.6.2022 by providing him
interim protection from arrest but said petition was dismissed on 1.8.2022 whereafter petitioner had approached the Supreme Court by filing SLP
which was also dismissed as withdrawn on 22.8.2022 and for having no other option petitioner had surrendered on 24.8.2022, therefore, it cannot be
said that petitioner had himself surrendered before the Court or police making him available for interrogation and investigation.
23 It has been submitted by learned counsel for petitioner that at the time of adjudication of Cr.MP(M) No. 1279 of 2022, in this High Court as well as
Special Leave Petition in the Supreme Court, entitlement of petitioner for anticipatory bail under Section 438 Cr.PC. was in reference, whereas
present petition has been filed seeking regular bail and thus, rejection of Cr.MP(M) No. 1279 of 2022 has no bearing on present petition.
24 Learned counsel for petitioner has submitted that Bail Application Cr.MP(M) No. 499 of 2023 was dismissed on 27th June, 2023 by this Court
taking into consideration the stage of trial and the fact that material witnesses of tender age were yet to be examined and thereafter, similar Bail
Application No. 83-S/22 of 2022 was dismissed by the Special Court,(POCSO) Solan, District Solan and keeping in view the vulnerability of child
victims and aggravation of offence with observation that at that stage, especially till the examination of minor victims, teachers and principal of the
school, release of accused on bail would be against the interest of minor victims defeating the objective of POCSO Act.
25 Learned counsel for petitioner has submitted that next date for recording the evidence has been fixed almost after 7 months and thereafter, next
date for recording the evidence of remaining witnesses shall be fixed and therefore, completion of trial may take a considerable long time and
therefore, keeping in view the pace of trial, petitioner is entitled for bail particularly when there is no role of petitioner for delaying the trial and there is
no explanation on behalf of respondent/State for delaying the production of evidence in Court.
26 Learned counsel for petitioner placing reliance on judgments of Pratap v. State of HP, Criminal Misc. Petition (Main) No. 1437 of 2022,
decided on 10.08.2022; Dharmander Singh @ Saheb vs. The State (Govt. of NCT, Delhi) in Bail Application No. 1559 of 2020, decided on
22-09-2020; Shashi Kumar vs State of HP, (2018)2 Shim.LC 967; Anwari Begum vs. Sher Mohammad, 2005AIR SC 3530, State of HP vs.
Amarmani Tripathi, (2005)8 SCC 21; Kalyan Chandra Sarkar vs. Rajesh Ranjan, (2004)7 SCC 528; Dataram vs. State of UP (2018)3 SCC
22 and Satender Kumar Antil vs. CBI (2023)10 SCC 51h, as submitted that keeping in view the period of detention, pace of trial, examination of all
victims and material witnesses, denial of commission of offence by 9 out of 10 child victims and number of remaining witnesses yet to be examined,
petitioner deserves to be enlarged on bail and he should not be punished before conclusion of trial by keeping him behind the bars only for the purpose
of teaching him a lesson.
27 It has been further submitted that Bail Application No. 46-S/22 of 2024 was dismissed by the Special Court, POCSO, Solan mainly on the ground
that statements of minor victims, teachers and principal of school were yet to be recorded and statement of single victim supporting the prosecution
case cannot be ignored and therefore, it was considered that petitioner was not entitled for bail at that stage especially till the examination of
complainant, teachers/principal of school as it was considered against the interest of minor victims causing the defeat to objective of POCSO Act. It
has been submitted that now circumstances have changed and all child victims have been examined and all 9 parents and teachers have been
examined and formal witnesses related to recovery etc are left to be examined and therefore, there is no chance of influencing the child victim
witnesses, their parents and teachers cited as witnesses in prosecution case.
28 Assessment/evaluation of statements of child witnesses, who have not supported the prosecution in examination-in-chief, have been subjected to
cross examination by learned Public Prosecutor and have admitted to have been made the statement before the Magistrate with identification of their
signatures on such statements but for denying the contents thereof, is not to be assessed by this Court dealing with question for enlarging the petitioner
on bail. The said evaluation/assessment is to be done by the Trial Court i.e. Special Court (POCSO).
29 Without commenting upon merits of case and taking into consideration the entire facts and circumstances including the period of detention and
stage of trial and also taking into account factors and parameters, as propounded by the Supreme Court and this Court, required to be considered at
the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case at this stage.
30 Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail in present case, subject to his furnishing personal bond in the
sum of Rs.2,00,000/- with one surety in the like amount to the satisfaction of the trial Court/Special Judge, upon such further conditions as may be
deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure the presence of petitioners/accused at the
time of trial:-
(i) That the petitioner shall make himself available to the Police or any other Investigating Agency or Court in the present case 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/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate
the prosecution witnesses;
(iii) That the petitioner shall not obstruct the smooth progress of the investigation/trial;
(iv) That the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;
(v) That the petitioner shall not misuse his liberty in any manner;
(vi) That the petitioner shall not jump over the bail;
(vii) That in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution;
(viii) That the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during
trial; and
(ix) The petitioner shall not leave India without permission of the Court.
31 It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner, enlarged on bail, as
deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to
impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.
32 In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may
approach the competent Court of law for cancellation of bail, in accordance with law.
33 Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-
IV.7139 dated 18.03.2013.
34 Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the
bail application.
The petition stands disposed of in the aforesaid terms..