BHUPESH THAKUR Vs. STATE OF H.P.

JUDGEMENT

(1.) Sequel to orders dated 14/21/8/2024, whereby bail petitioner was ordered to be enlarged on interim bail in case FIR No.20/24, dtd. 18/7/2024, registered at Women Police Station Baddi, District Solan, Himachal Pradesh, under Sec. 69 of the Bharatiya Nyaya Sanhita, 2023 (in short "BNS") and Sec. 18 (d) of the Transgender Persons (Protection of Rights) Act 2019 (in short "Act"), respondent-State has filed the status report and ASI Vijay Pal Singh, I.O. WPS Baddi, has come present with record. Record perused and returned.

(2.) Close scrutiny of record/status report reveals that on 18/7/2024, victim-prosecutrix lodged a complaint at WPS Baddi, alleging therein that during lockdown on account of Covid-19, she had come in contact of the bail petitioner through Facebook and since then, they both had been meeting and talking to each other. She alleged that though factum with regard to her being transgender was disclosed to the petitioner from day one, but yet he kept on insisting on solemnizing marriage with her. She alleged that after lifting of lockdown in the wake of Covid-19, bail petitioner took her to Naina Devi and Agra and applied Sindoor on her forehead to assure her of their marriage. She alleged that though factum of relationship inter-se her and bail petitioner was in the knowledge of families of both the persons, but yet parents of bail petitioner expressed their inability to solemnize marriage. She alleged that bail petitioner and his father told her to first become woman and as such, she got her sex changed at AIIMS Delhi. She alleged that though on the insistence of the bail petitioner and his family members, she has got her sex changed, but bail petitioner has refused to solemnize marriage. She alleged that she has come to know that family of the bail petitioner has fixed his marriage with some other person and as such, appropriate action in accordance with law be taken against him. In view aforesaid background, FIR, as detailed herein above, came to be lodged against the petitioner, but before he could be apprehended, he approached this Court through instant petition, praying therein for grant of interim bail. Vide order dtd. 14/8/2024, this Court enlarged the bail petitioner on interim bail subject to his joining investigation. Since bail petitioner has already joined investigation and nothing remains to be recovered from him, prayer has been made on his behalf for confirmation of interim bail granted vide order dtd. 14/8/2024.

(3.) Mr. Ajay Kochhar, learned senior counsel representing the petitioner while making this Court peruse contents of the FIR vis-a-vis provisions contained under Sec. 69 of the BNS, submits that no case much less under Sec. 69 is made out, rather case, if any, is made out against the petitioner under Sec. 18 (d) of the Act, wherein maximum punishment of two years can be awarded. While making this Court peruse status report/record made available to this Court, Mr. Kochhar, further submits that though victim-prosecutrix repeatedly claimed that on the askance of the petitioner and his family members, she got her sex changed, but such fact is yet to be established on record by leading cogent and convincing evidence. While referring to MLC adduced on record, Mr. Kochhar, states that victim-prosecutrix refused to get herself medically examined, as a result thereof, there is ample evidence adduced on record till date with regard to surgery, if any, got conducted by the prosecutrix for getting her sex changed. Mr. Kochhar further states that allegation of maintaining physical relations with victim-prosecutrix are false, but since such relation was allegedly maintained prior to surgery, if any, got conducted by the victim-prosecutrix, whereby she allegedly got her sex changed, no offence, if any, under Ss. 69 of BNSS and 18 (d) of the Act, can be stated to have been committed. He states that since petitioner has already joined the investigation and nothing remains to be recovered from him, interim bail granted in his favour vide order dtd. 14/8/2024, deserves to be confirmed in view of the peculiar facts and circumstances of the case.