Harish Kumar Vs State of Hp

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 354A, 506, and 509 of the Indian Penal Code (IPC) registered vide F.I.R. No. 104 of 2024, dated 20.06.2024, at Police Station Joginder Nagar, District Mandi. As per the prosecution’s case, the petitioner was posted as a teacher. He had sexually assaulted the

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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child victims and threatened them not to disclose the incident to anyone. The police registered the FIR and conducted the investigation. The police filed a charge sheet before the Court, and the matter is listed for the prosecution’s evidence. The petitioner is a Government Employee, and there is no chance of his absconding. He has been in custody since 20.06.2024. No prima facie case has been made out against the petitioner. The matter was reported to the police by the victims after about one year. The prosecution has not examined even a single witness despite being granted many opportunities. The petitioner would abide by all the terms and conditions, which the Court may impose. Hence, the petition.

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The petition is opposed by filing a status report asserting that the police received a complaint regarding the indecent activities of the petitioner with the minor girls studying in his school. The police conducted an investigation and found that the petitioner had sexually assaulted many girls studying in the school. The police arrested the petitioner and filed the charge sheet before the Court. The matter was listed for consideration of charge on 01.02.2025, hence the status report.

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I have heard Mr. Devender K. Sharma, learned counsel

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for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent/State.

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Mr. Devender K. Sharma, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The petitioner has been behind the bars since June 2024. There has been no progress in the trial, and the right of speedy trial of the petitioner is being violated. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State, submitted that the petitioner had sexually assaulted many girls. He was in a position of trust qua them, and he violated the trust reposed by his parents upon him. The offence committed by the petitioner is heinous and should not be viewed lightly. The petitioner can indulge in the commission of a similar offence in case of his release on bail. Hence, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions

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made at the bar and have gone through the records carefully.

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The parameters for granting bail were considered by the Hon’ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768: 2024 SCC OnLine SC 974, wherein it was observed as under at page 783: -

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“Relevant parameters for granting bail

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26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P. [ Chaman Lal v. State of U.P . , ( 2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh

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Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] . ]

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This position was reiterated in Ramratan v. State of

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M.P., 2024 SCC OnLine SC 3068, wherein it was observed as under: -

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“12. The fundamental purpose of bail is to ensure the accused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly related to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 observed that though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below:

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“14. The language of Section 437(3) CrPC, which uses the expression “any condition … otherwise in the interest of justice” has been construed in several decisions of this Court. Though the competent court is empowered to exercise its discretion to impose “any condition” for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to impede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legitimately be imposed both in the context of bail and anticipatory bail.” (Emphasis supplied)

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13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570 , this Court discussed the scope of the discretion of the Court

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to impose “any condition” on the grant of bail and observed in the following terms: —

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“15. The words “any condition” used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed.” (Emphasis supplied)

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14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779 , laid down the factors to be taken into consideration while deciding the bail application and observed:

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“ 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” (Emphasis supplied)

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A similar view was taken in Shabeen Ahmed versus State

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of U.P, 2025 SCC Online SC 479.

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The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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A perusal of the status report shows that the girls complained about the sexual assault by the petitioner on them. He also threatened the victims, and they did not report the incident to anyone. The victims were studying in the school where the petitioner was posted as a teacher. He held a position of authority over the victims, and their reluctance to report the matter can very well be understood. Further, the victims were minor and not in a position to comprehend what was happening to them. It was laid down by Delhi High Court in Court on its Own Motion v. State, 2018 SCC OnLine Del 10301 that the children are generally reluctant to disclose the incident, and the disclosure happens over time. It was observed:

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“81. The dynamics of child sexual abuse are the same internationally. First and foremost, it is essential to understand the manner in which the children recount. Children do not disclose in one go but do so in piecemeal. To accord the same treatment to a child as one would to an adult would result in grave injustice.

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82. It needs no elaboration that the children would be reluctant and unlikely to disclose an entire adverse experience in proper detail in their first statement to the police, let alone the necessary details. The fear for themselves or their family; an apprehension that they would be disbelieved; inability to identify themselves as victims; pressure or threats from the perpetrator; relationship to the perpetrator; fear of embarrassment, shame or self-blame; fear of stigmatization; lack of trust with the investigating agency amongst other would be some of the reasons which would act as barriers to a child making a disclosure of a complete incident in a single meeting.

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83. There is great variation in how disclosure is defined and studied. Disclosure is rarely a spontaneous event and it is more likely to occur: —

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slowly over time as part of a process. For some, it is a process that reoccurs and is never finished. Children and young people disclose abuse in many different ways

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ranging from direct verbal statements to more subtle indirect methods. Some children will tell purposefully yet others will do so indirectly or only after being encouraged by others to talk Non-verbal disclosures are more common among young children and

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can come about through letter writing, role-playing or drawing Bodily or physical signs of abuse can include stomach aches, encopresis

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enuresis, adverse reactions to yoghurt or milk, or soreness in the genitals Emotional signs of abuse include fear, anxiety, sadness, acting out

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without immediate cause, mood swings and reluctance to visit the perpetrator Behavioural signs can include sexualised playing with dolls, sexual

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experimentation, excessive masturbation, or drawing sexual acts. However, such behaviours need to be

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considered in the context of individual, family and wider societal dynamics in which they occur Various models or stages of disclosure have been proposed including

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staged, social exchange and social cognitive models. The models agree that disclosure is an interactive and dynamic process that is influenced by the way children conceptualise and make decisions about whom to tell and the reactions they might receive.¹

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84. Children may disclose spontaneously ( disclosure as an event ) or indirectly and slowly ( disclosure as a process ). The child's type of disclosure may be influenced by their developmental features, such as their age at the onset of abuse and/or their age at the time of disclosure. For instance, younger children are more likely to spontaneously disclose than older children ( Lippert, Cross, & Jones, 2009; London et al., 2005; Shackel, 2009 ). Understanding disclosure of abuse as a process may help adults to be patient and allow the child or young person to speak in their own way and their own time ( Sorensen & Snow, 1991 ). It also helps adults maintain an awareness of any changes in behaviour or emotions that may indicate abuse is occurring or increasing. If you have suspicions that abuse is occurring, even if you are unsure, it is better to report your suspicions than to do nothing. (Responding to children and young people's disclosures of abuse CFCA Practitioner Resource— March 2015 Australian Government-Australian Institute of Family Studies)

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85. Some children and young people may disclose when asked or after participating in an intervention or education program ( Shackel, 2009 ). Others may initially deny that they have been abused if asked directly, or say that they forget, only to disclose later. Children and young people may disclose, only to retract what they have said later; however, this is relatively uncommon. The child or young person might say he or she made a mistake, lied, or that the abuse actually happened to another child. In cases with a higher likelihood of actual abuse, recantations are low (4-9%

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London et al., 2005). However, the stress of disclosing and receiving potentially negative responses from caregivers may lead some children to recant in an attempt to alleviate the stress (Hershkowitz, Lanes, & Lamb, 2007).³

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86. A recent qualitative study of disclosure among 60 young men and women in the United Kingdom observed eight forms of disclosure: direct, indirect verbal, partial verbal, accidental direct/verbal, prompted, nonverbal/behavioural, retracted and assisted. Partial disclosures were characterised by minimisation of the abuse, disclosing abuse of another person or disclosing other forms of abuse such as physical assault. Prompted disclosures were made in response to a direct inquiry about abuse while assisted disclosures involved a young person disclosing to another young person with the help of a friend. The authors note that children use a variety of techniques to disclose including direct or ambiguous verbal statements and non-verbal disclosure in the form of writing letters, reenacting abuse-type situations or drawing pictures for adults. Physical or bodily signs of child sexual abuse can include stomach aches, encopresis, enuresis, adverse reactions to yoghurt or milk ( due to resemblance to semen ), or soreness in the genitals (Jensen, 2005). Emotional signs can encompass fear, anxiety, and sadness, acting out without immediate cause, mood swings and reluctance to visit the perpetrator. Behavioural signs include sexualised playing with dolls, sexual experimentation, excessive masturbation, or drawing sexual acts (Finkelhor, 1994; Jensen, 2005).⁴

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87. Where children are concerned, the disclosure normally would tend to be a process, rather than a single incident or episode. It would take multiple interviews for an investigator or an interviewer to even establish trust in the mind of the child. Unfortunately, we have been unable to evolve any guidelines with regard to the investigation and prosecution of cases of child sexual abuse which are the subject matter of the POCSO Act, 2012, though the Central

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Government has suggested the following in the POCSO Model Guidelines:

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“The dynamics of child sexual abuse are such that often, children rarely disclose sexual abuse immediately after the event. Moreover, disclosure tends to be a process rather than a single episode and is often initiated following a physical complaint or a change in behaviour. In such a situation, when the child finally discloses abuse and a report is filed under the POCSO Act, 2012 more information will have to be gathered so that the child's statement may be recorded.

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Information so obtained will become part of the evidence. However, given the experience that the child has gone through, he is likely to be mentally traumatised and possibly physically affected by the abuse. Very often, law enforcement officers interview children with adult interrogation techniques and without an understanding of the child’s language or child development. This compromises the quality of evidence gathered from the child, and consequently, the quality of the investigation and trial that are based on this evidence.

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The interviewing of such a child to gather evidence thus demands an understanding of a range of topics, such as the process of disclosure and child-centred developmentallysensitive interviewing methods, including language and concept formation. A child development expert may therefore have to be involved in the management of this process. The need for a professional with specialized training is identified because interviewing young children in the scope of an investigation is a skill that requires knowledge of child development, an understanding of the psychological impact sexual abuse has on children, and an understanding of police investigative procedures.

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Such a person must have knowledge of the dynamics and the consequences of child sexual abuse, an ability to establish rapport with children and adolescents, and a capacity to maintain objectivity in the assessment process. In the case of a child who was disabled/physically handicapped prior to the

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abuse, the expert would also need to have specialised knowledge of working with children with that particular type of disability, e.g. visual impairment, etc.”

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In the present case, considering the tender age of the victims and the position held by the petitioner over them, the delay in reporting the matter is not significant. Hence, no advantage can be derived from the delay in reporting the matter to the police.

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The petitioner was posted as a teacher in the school where the victims were studying. There is a force in the submission of Mr. Ajit Sharma, learned Deputy Advocate General for the respondent-State that he was in loco parentis qua the victims. He was bound to protect them. However, he sexually assaulted them. The act of the petitioner was heinous, and the petitioner is not entitled to be released on bail, keeping in view the gravity of the acts committed by him.

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It was submitted that the trial against the petitioner is not progressing, and the right to speedy trial of the petitioner is being violated. This is not acceptable. The order sheets maintained by ld. Trial Court show that charges were framed on 03.09.2024, and the matter could not be taken up because the Court of ld.

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Special Judge, POCSO Court remained vacant. The new incumbent ordered the amendment of charges because the offences were committed against multiple victims. The matter is now listed for the prosecution’s evidence on 16.04.2025, 17.04.2025 and 19.04.2025. The fact that the learned Trial Court has listed the matter on three consecutive working days shows his concern to expeditiously dispose of the matter. Hence, the plea that the learned trial Court is not conducting the trial expeditiously is not acceptable.

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No other point was urged.

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In view of the above, the petitioner is not entitled to bail at this stage. Hence, the present petition fails and the same is dismissed.

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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.

Harish Kumar v. State of Hp

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Harish Kumar v. State of Hp

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