BA1/2211/2024 of SOHAB Vs STATE OF UTTARAKHAND

IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

THE HON’BLE SRI JUSTICE ASHISH NAITHANI

FIRST BAIL APPLICATION NO. 2211 of 2024Sohab

…Applicant

Versus

State of Uttarakhand

…Respondent

Counsel for the Applicant : Mr. P.S. Bohra, learned counsel.

Counsel for the State

: Mr. Rakesh Negi, learned Brief Holder.

Hon’ble Ashish Naithani, J.

This is an application seeking regular bail under Section 439 of the Code of Criminal Procedure, 1973, in connection with FIR No. 619 of 2024, registered at Thana Kotwali, Jawalapur, District Haridwar, under Sections 3(a) and 4(2) of the Protection of Children from Sexual Offences Act, 2012, and Sections 137(2) and 65(1) of the Bharatiya Nyaya Sanhita, 2023. The applicant, Sohab, aged about 19 years, has been in judicial custody since 04.08.2024.

2. As per the FIR, minor girl aged 14 years, along with her friend, was reported missing by the informant, her maternal uncle. Though the FIR was initially lodged against an unknown person, subsequent investigation revealed that the applicant had allegedly enticed the victim. It is further stated that the victim was recovered from the applicant's company. The victim has alleged that the applicant had engaged in sexual activity with her during the period she was missing.

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3. Heard learned Counsels for the Parties and perused the records.

4. Learned counsel for the applicant submitted that the FIR neither names the applicant nor contains any direct allegation against him at the outset. It is further submitted that the statements allegedly recorded by the police are inconsistent with those recorded by the Medical Officer at the Government Women’s Hospital, Haridwar.

5. In her voluntary statement before the Medical Officer, the victim stated that she had invited the applicant to Haridwar and that she went with her friend Ayushi to Bijnor of her own volition. The statement categorically denies any instance of sexual assault and records the refusal of both the victim and her mother to undergo any internal medical examination.

6. It is further argued that no videography was undertaken while recording the victim's statement under Section 180 BNSS, and the same is therefore of limited evidentiary value. Additionally, the call details of the alleged communication between the victim and the applicant have not been placed on record by the State, which could have substantiated or disproved the alleged enticement.

7. The applicant is young man of 19 years with no prior criminal antecedents. It is submitted that he was arrested in Bijnor, outside the territorial jurisdiction of the Uttarakhand Police, in violation of mandatory procedural safeguards. The applicant relies on the judgments of D.K. Basu v. State of West Bengal, (1997) 6 SCC 642, and Nandini Satpathy v. P.L. Dani,

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(1978) 2 SCC 424, to contend that the arrest violated constitutional and procedural rights.

8. Learned State counsel has vehemently opposed the bail, stating that the minor girl was recovered from the possession of the applicant. Statements of the victim recorded under Section 180 of the BNSS clearly implicate the applicant and reveal that during her absence from home, she remained with the applicant, who sexually molested her. This negates any claim of false implication.

9. The State has also submitted that the recovery memo and the FIR contents point toward the applicant’s active role in the commission of heinous offence involving minor girl. The burden of establishing entitlement to bail lies on the applicant, which in the present case remains unfulfilled. The State emphasises that although the FIR may not have named the applicant initially, the later statements and recovery establish prima facie case.

10. The State submits that the nature of the accusations, the age of the victim, and the gravity of the offences, particularly under the POCSO Act, warrant denial of bail at this stage. It is also contended that if the applicant is released, there is strong possibility of tampering with evidence or influencing witnesses.

11. The Court observes that, while the victim’s statement under Section 180 BNSS contains allegations against the applicant, the medical evidence on record significantly weakens the State's version. The medical documents from the Women’s Hospital, Chainrai, Haridwar, record voluntary statement by the victim denying any sexual contact and refusing internal

2025:UHC:2922examination. These documents are certified by the Government Medical Officer and bear official verification.

12. More importantly, this Court takes note of the victim’s categorical statement under Section 183 BNSS recorded before the learned Special Judge, POCSO, Haridwar. In her testimony before the Court, the victim clearly stated that she and her friend went with the applicant voluntarily, and that no sexual activity or other wrongful act as alleged was committed by the applicant during the entire period, and that she returned to her home on her own accord.

13. Such statement, made before the Special Judge in Court, carries evidentiary weight and runs contrary to the narrative sought to be advanced by the State. This divergence between the alleged victim’s medical and judicial statements on one hand and the police-recorded statement on the other calls for cautious judicial scrutiny.

14. Additionally, the FIR was initially against an unknown person, and the sequence of events connecting the applicant to the alleged offences lacks explicit corroborative material. No forensic or DNA evidence has been brought to light, and the medical reports do not indicate any signs of sexual assault or injury.

15. The Hon’ble Supreme Court in Mahipal v. Rajesh Kumar, (2020) 2 SCC 118, held that though the seriousness of the offence is an important consideration, it cannot override the necessity of evaluating the material on record. Where the evidence is weak or inconsistent and the accused has no prior

criminal antecedents, bail may be considered.

16. Similarly, in Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the Court laid down the principles governing the grant of bail, including the absence of likelihood of fleeing justice, tampering with evidence, and prima facie satisfaction of the Court.

17. In the present case, there are significant inconsistencies in the material on record, especially in view of the victim’s testimony before the learned Special Judge, lack of medical and forensic support, and the applicant’s status as first-time offender. The trial is likely to take time, and prolonged pre-trial incarceration in such circumstances may not serve the ends of justice.

18. Let the applicant, Sohab, be released on bail on furnishing personal bond of two sureties of the like amount, to the satisfaction of the court concerned. The applicant shall not tamper with the evidence, shall not contact or influence any witness, shall appear on each date fixed before the trial court, and shall not commit any offence while on bail. In case of breach of any of the above conditions, the State shall be at liberty to move for cancellation of bail.

19. The bail application is allowed.

___________________

ASHISH NAITHANI, J.

Dt: 15.04.2025 SBSHIKSHA BINJOLADigitally signed by SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b5aa08b09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7FF0A9BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA Date: 2025.04.23 12:41:47 +05'30'