Point of Law : grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country.

ORDER :

Bail petitioners, namely Vivek Chaudhary, Savan and Rahul, who are behind the bars have approached this court in the instant proceedings filed under S. 439 Cr.P.C, for grant of regular bail in case FIR No. 75 of 2021, dated 18.9.2021, registered at Police Station Lambagaon, District Kanga, Himachal Pradesh under Ss. 376(1), 376(D), 354, 120-B, 201 of IPC, Ss. 6, 17 and 21 of Protection of Children from Sexual Offences Act, Section 181 of Motor Vehicles Act and Sections 3(i)(w)(i)(ii) 3(II)(va) of SC and ST Act. Respondent State has filed status report and SI Kesar Singh has come present with record. Record perused and returned.

2. Close scrutiny of the record /status report made available to this court reveals that on 18.9.2021, victim-prosecutrix, aged 17 years (name withheld) lodged a complaint at Police Station Lambagaon, District Kangra, Himachal Pradesh, alleging therein that on 3.9.2021, she had gone to Balakrupi to attend birthday of granddaughter of her aunt(Tai). She further alleged that on 7th/8th 9.2021, when her aunt had gone to earn daily wages and uncle was sleeping after having consumed liquor, her sister-in-law sent two persons to her and they took her to Bohar (room in upper storey of the house) and sexually assaulted her against her wishes. She alleged that when one person was committing sexual assault upon her, another was making her video. She disclosed to the police that on 10.9.2021, she went to Palampur to meet her friend but on 11.9.2021, while she reached Palampur bus stand, she received telephonic call from some person that you reach Kangra, otherwise video made at the residence of her sister-in-law would be made viral. She alleged that after having received aforesaid telephone call, she went to Kangra, from where two persons took her to Jwala Ji and sexually assaulted her against her wishes in a hotel and thereafter dropped her at Nadaun. In the aforesaid background, FIR, as detailed hereinabove, came to be lodged against bail petitioners namely, Kala alias Ajay Kumar and Bihari Lal. Subsequently, victim-prosecutrix in her statement recorded under S. 164 Cr.P.C alleged that on 6.9.2021, two boys namely, Vivek Chaudhary and Savan came to her aunt’s house and called her outside the window. She alleged that person namely Savan sexually assaulted her in a van and other person, Vivek Chaudhary was standing outside. She alleged that though Vivek Chaudhary did not commit any wrong with her, but hurled abuses and misbehaved with her. In the aforesaid statement, she alleged that on 7.9.2021, at 3-4 PM, Kala alias Ajay Kumar alongwith other person came and sexually assaulted her in the Bohar (room in the upper storey of house). She further deposed before the Magistrate that she went to Kangra from where, Rahul took her to Jwalaji in Free India Bus and sexually assaulted her in a hotel. In the aforesaid background, bail petitioners Vivek Chaudhary, Savan and Rahul also came to be named in the FIR. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioners, they have approached this court in the instant proceedings, praying therein for grant of regular bail.

3. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting factum with regard to filing of the Challan in the competent court of law, contends that though nothing remains to be recovered from the bail petitioners, but keeping in view the gravity of offence alleged to have been committed by them, they do not deserve leniency. While making this court peruse evidence collected on record by the Investigating Agency Mr. Bhatnagar, learned Additional Advocate General contends that though there is overwhelming evidence on record that all the bail petitioners, taking undue advantage of the innocence and minority of the victim-prosecutrix, sexually assaulted her against her wishes, but even otherwise consent, if any, of the victim-prosecutrix being minor is immaterial and, as such, prayer m