Rakesh Chand @ Rakesh Kumar vs State Of H.P

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking regular bail in FIR No. 3 of 2024 dated 08.03.2024 registered at Police Station Bagga, Tehsil Arki, District Solan, for the commission of offences punishable under Section 376(2)(f) of the Indian Penal Code (IPC) and Section 6 of the Protection of Children from Sexual Offences Act (POCSO).

It has been asserted that the petitioner was wrongly arrested by the police. He was not informed about the grounds of arrest, and his arrest is violative of the constitutional rights granted under Articles 21 and 22 f the C nstitution of India. He had earlier filed a bail pe i ion, which was registered as CrMP(M) No. 1971 of 2024 and was dismissed on 01.10.2024. The relationship between the petitioner and the victim’s mother is strained. The victim was residing with her mother in a rented room for the last 7-8 years. The victim’s mother made a false complaint. The prosecution has not completed the evidence despite the lapse of more than one year. The petitioner would abide by the terms and conditions that the Court may impose. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

The petition is opposed by filing a status report asserting that the informant made a statement complaining about the rape of the victim by the petitioner. The police registered the FIR and conducted the investigation The petitioner was medically examined. The victim was found to be 12 years, 11 months & 18 days old on the date of the incident. She was born on 13.03.2011. No semen was detected in the samples of the victim, but semen was detected on the ‘Pyjami’ of the petitioner and his underwear. The challan was prepared and was filed before the learned Special Judge, Fast Track Solan on 30.04.2024. The charge was f amed by the Court on 20.07.2024. The statements of 9 witnesses have been recorded. Three witnesses were given up. The statements of eye witnesses are to be recorded, and the matter was listed on 25/26.07.2025; hence the status report.

I have heard Mr Nand Lal Chauhan, learned counsel for the petitioner and Mr Ajit Sharma, learned Deputy Advocate General for the respondent/State.

Mr Nand Lal Chauhan, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated because of enmity with the victim’s mother. The grounds of arrest were not communicated to the petitioner, and his constitutional rights under Article 22 of the Constitution of India have been violated. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

Mr Ajit Sharma, learned Deputy Advocate General for the respondent/State, submitted that the Hon’ble Supreme Court has held in Mihir Rajesh Shah v. State of Maharashtra, 2025 SCC OnLine SC 2356, that the communication of grounds of arrest in the case wo ld apply prospectively and not retrospectively. Theref re, the petitioner cannot claim bail on the ground of non-communication of arrest. The petitioner is involved in the commission of a heinous offence. His earlier bail petition was dismissed by the Court. There is no change in the c rcumstances justifying the release of the petitioner on bail. Hence, he prayed that the present petition be dismissed.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

It is undisputed that the petitioner had filed a bail petition, which was registered as Cr.MP(M) No. 1971 of 2024 and was dismissed on 01.10.2024. It was held in State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC 605, that once a bail application has been dismissed, a subsequent bail application can only be considered if there is a change of circumstances. It was observed:

“Once that application was rejected, there was no question of granting a similar prayer. That is virtually overruling the earlier decision wi hout here being a change in the fact situation. And when we speak of change, we mean a substantial one, which has a direct impact on the earlier decision and not merely cosmetic changes, which are of little r no c nseq ence. 'Between the two orders, there was a gap f nly two days, and it is nobody's case that during these two days, drastic changes had taken place, necessitating the release of the respondent on bail. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed, reversing all earlier orders, including the one rendered by Puranik, J., only a couple of days before, in the absence of any substantial change in the fact situation. In such cases, it is necessary to act with restraint and circumspection so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one judge or selected another to secure an order which had hitherto eluded him.

Similarly, it was held in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 that where an earlier bail application has been rejected, the Court has to consider the rejection of the earlier bail application and then consider why the subsequent bail application should be allowed It was held:

“11. In regard to cases where earlier bail applications have been rejected, there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration, if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejec ion he subsequent bail application should be granted.”

Therefore, the e is fo ce in the submission of Mr Ajit Sharma, learned Dep ty Advocate General for the respondent/State, that the present petition only lies if there is a change in the circumstances.

It was submitted that the grounds of arrest were not communicated to the petitioner, and this fact was not brought to the notice of the Court. This submission is not acceptable. Hon’ble Supreme Court held in Mihir Rajesh Shah v. State of Maharashtra, 2025 SCC OnLine SC 2356 that the communication of the grounds of the arrests in all the offences would apply prospectively from the date of the pronouncement of the judgment. It was observed:

“58. We are cognizant that there existed no consistent or binding requirement mandating the written communication of the grounds of arrest for all the offences. Holding as above, in our view, would ensure implementation of the constitutional rights provided to an arrestee as engrafted under Article 22 of the Constitution of India in an effective manner. Such clarity on obligation would avoid uncertainty in the administration of criminal justice. The ends of fairness and legal discipline, therefore, demand that this procedure, as affirmed above, shall govern arrests henceforth.” (Emphasis supplied)

Therefore, the plea egarding the non-supply of grounds of arrest will not be available to the petitioner.

The petiti ner is involved in the commission of a heinous offence. He had raped a minor who was only 12 years old. The FIR is registered for the commission of an offence punis able under Section 6 of the POCSO Act, which is punishable with imprisonment not less than 20 years, and which may extend to imprisonment for life. It was laid down by the Hon’ble Supreme Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court of A.P., (1978) 1 SCC 240: 1978 SCC (Cri) 115: 1977 SCC OnLine SC 327 that when the punishment is severe, the person is not entitled to bail. It was observed at page 244:

“6. Let us have a glance at the pros and cons and the true principle around which other relevant factors must re-volve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage, and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be lib-erated, to take judgment and serve a sentence in the event of the Court punishing him with imprisonment. In this perspective, the relevance f c nsiderations is regulated by their nexus with the likely absence of the applicant for fear of a severe sen ence, if such be plausible in the case. As Erle. J. indicated, when he crime charged (of which a conviction has been sustained) is of the highest magni-tude and the p nishment for it assigned by law is of ex-treme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence f the convict at the stage of judgment, should he be enlarged. [ Mod. Law Rev. p. 50 ibid., 1852 I E & B 1] Lord Campbell, C.J., concurred in this approach in that case, and Coleridge J. set down the order of priorities as follows: [Mod. Law Rev. ibid., pp. 50-51]

“I do not think that an accused party is detained in custody because of his guilt, but because there are sufficient probable grounds for the charge against him as to make it proper that he should be tried, and because the detention is necessary to ensure his ap-pearance at trial .... It is a very important element in considering whether the party, if admitted to bail, would appear to take his trial; and I think that in coming to a determination on that point three ele-ments will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punishment to which the party would be liable if convicted. In the present case, the charge is that of wilful murder; the evidence contains an admission by the prisoners of the truth of the charge, and the punishment of the offence is, by law, death.”

It is thus obvious that the nature of the charge is the vital factor, and the nature of the evidence also is perti-nent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue.

Considering the nature o the offence and the severity of the punishment, the petiti ner cannot be held entitled to bail.

It was submitted that there is a delay in the progress of the trial, and the petitioner is entitled to bail on this ground. This submission is not acceptable. The status report shows that only five witnesses remained to be examined, and the matter was listed on 25/26.07.2025. This shows that substantial pro ress has been made in the present case, and the petitioner cannot be held entitled to bail on the ground of delay in the progress of the trial. In any case, it was laid down by the Hon’ble Supreme Court in Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129: (2018) 3 SCC (Cri) 425: 2017 SCC OnLine SC 1363 that the period of incarceration would not by itself entitle a person to bail. It was observed at page 141:

“24. As pointed out earlier, one of the grounds for the grant of bail to the appellant Anil Kumar Yadav by the Sessions Court was that he was in custody for more than one year. In crimes like murder, the mere fact that the accused was in custody for more than one year may not be a relevant consideration. In Gobarbhai Naranbhai Singala v. State of Gujarat, (2008) 3 SCC 7775:(2008) 2 SCC (Cri) 743], it was observed that the period of incarceration by itself would not entitle the accused to be enlarged on bail. The same was reiterated in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688”

Therefore, the pe i ioner cannot claim to be entitled to bail on the ground of delay in the progress of the trial.

No other p int was urged.

In view of the above, the present petition fails, and it is dismissed.

The petitioner was on interim bail. He shall surrender w thin a period of 10 days, failing which the steps be taken to secure his presence as per law.

The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.