2025:HHC:41886 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1729 of 2025 Reserved on: 28.11.2025 Date of Decision: 04.12.2025 _______________________________________________________________ Onkar .... Petitioner Versus State of Himachal Pradesh and Anr ...Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No For the Petitioner : Mr. K.S. Gill, Advocate. For the Respondent- State : Mr. Jitender Sharma, Additional Advocate General for respondent No.1 Ms. Kiran Dhiman, Advocate, for respondent No.2/victim. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking the grant of regular bail in FIR No.12/25, dated 19.02.2025, registered at Women Police Station, Baddi, District _________________________ Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2. 2025:HHC:41886 Shimla, under Sections 64 (2)(f), 64 (2)(m) and 351(2) of Bhartiya Nyaya Sanhita (BNS) 2023. 2. It has been asserted that, as per the prosecution, the victim was residing with her mother. The petitioner used to visit the victim’s room. He raped her and threatened to kill her in case the incident was revealed to anyone. He promised to solemnise the victim’s marriage with his nephew, Nand Lal. The police registered the FIR and investigated the matter. The police obtained samples, but no blood or human semen was detected; therefore, no DNA profile was conducted. The petitioner was not informed of the grounds of arrest, which is a violation of his constitutional rights. The FIR was lodged in the year 2025 after a delay of nine months. The story propounded by the victim is false and without any basis. The police have filed the charge-sheet, and no fruitful purpose would be served by detaining the petitioner in custody; hence, the petition. 3. The petition is opposed by filing a status report asserting that the victim made a complaint to the police, stating that the petitioner had raped her. He also threatened the victim to kill her in case the incident was revealed to any person. Subsequently, he promised to marry the victim to Nand Lal. Nand Lal also raped the victim. The police registered 3. 2025:HHC:41886 the FIR and conducted the investigation. The victim and the petitioner were medically examined, and as per the report of the Medical Officer, there was nothing to suggest that the petitioner was incapable of performing sexual intercourse. The samples were preserved and sent to FSL; however, no DNA was found in the samples of the victim. The police filed the charge sheet against the petitioner. The matter was listed for recording the statements of the prosecution witnesses on 01.09.2025. Hence, the status report. 4. The victim has also filed a reply opposing the bail petition by asserting that she is under immense threat from the petitioner. Petitioner would intimidate her and tamper with the evidence if released on bail. The petitioner had threatened to kill the victim, due to which she could not narrate the incident to any person. Hence, it was prayed that the present petition be dismissed. 5. I have heard Mr K.S. Gill, learned counsel for the petitioner, Mr Jitender K. Sharma, learned Additional Advocate General for the respondent No.1/State and Ms Kiran Dhiman, learned counsel for the respondent No.2/victim. 6. Mr K.S. Gill, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely 4. 2025:HHC:41886 implicated based on vague allegations. No particulars of the time and place were given. The FIR was filed belatedly. The police have filed the charge sheet before the Court. No fruitful purpose would be served by detaining the petitioner in custody. The petitioner would abide by the terms and conditions which the Court may impose upon him; hence, it was prayed that the present petition be allowed and the petitioner be released on bail. 7. Mr Jitender Sharma, learned Additional Advocate General for the respondent No.1/State, submitted that the petitioner has committed a heinous offence. The statements of the witnesses are being recorded. The petitioner would intimidate the witnesses and interfere with the fair trial in case of his release on bail; therefore, he prayed that the present petition be dismissed. 8. Ms. Kiran Dhiman, learned counsel for the respondent No.2/victim, submitted that the petitioner would intimidate the victim and tamper with the evidence in case of his release on bail. Hence, she prayed that the present petition be dismissed. 9. The parameters for granting bail were considered by the Hon’ble Supreme Court in Pinki v. State of U.P., 5. 2025:HHC:41886 (2025) 7 SCC 314: 2025 SCC OnLine SC 781, wherein it was observed at page 380: - (i) Broad principles for the grant of bail 56. In Gudikanti Narasimhulu v. High Court of A.P., (1978) 1 SCC 240: 1978 SCC (Cri) 115, Krishna Iyer, J., while elaborating on the content of Article 21 of the Constitution of India in the context of personal liberty of a person under trial, has laid down the key factors that should be considered while granting bail, which are extracted as under: (SCC p. 244, paras 7-9) “7. It is thus obvious that the nature of the charge is the vital factor, and the nature of the evidence is also pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the is- sue. 8. Another relevant factor is whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. [Patrick Devlin, “The Criminal Prosecution in England” (Oxford University Press, London 1960) p. 75 — Modern Law Review, Vol. 81, Jan. 1968, p. 54.] 9. Thus, the legal principles and practice validate the Court considering the likelihood of the appli- cant interfering with witnesses for the prosecu- tion or otherwise polluting the process of justice. It is not only traditional but rational, in this con- text, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of crimi- nological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to 6. 2025:HHC:41886 inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.” (emphasis sup- plied) 57. In Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4 SCC 280: 2001 SCC (Cri) 674, this Court highlighted various aspects that the courts should keep in mind while dealing with an application seeking bail. The same may be ex- tracted as follows: (SCC pp. 284-85, para 8) “8. The jurisdiction to grant bail has to be exer- cised on the basis of well-settled principles, hav- ing regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circum- stances which are peculiar to the accused, rea- sonable possibility of securing the presence of the accused at the trial, reasonable apprehen- sion of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge.” (emphasis supplied) 58. This Court in Ram Govind Upadhyay v. Su- darshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688, speaking through Banerjee, J., empha- 7. 2025:HHC:41886 sised that a court exercising discretion in matters of bail has to undertake the same judiciously. In high- lighting that bail should not be granted as a matter of course, bereft of cogent reasoning, this Court ob- served as follows: (SCC p. 602, para 3) “3. Grant of bail, though being a discretionary or- der, but, however, calls for the exercise of such a discretion in a judicious manner and not as a matter of course. An order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is depen- dent upon the contextual facts of the matter be- ing dealt with by the court and facts do always vary from case to case. While the placement of the accused in society, though it may be consid- ered by itself, cannot be a guiding factor in the matter of grant of bail, and the same should al- ways be coupled with other circumstances war- ranting the grant of bail. The nature of the of- fence is one of the basic considerations for the grant of bail — the more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual ma- trix of the matter.” (emphasis supplied) 59. In Kalyan Chandra Sarkar v. Rajesh Ran- jan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977, this Court held that although it is established that a court considering a bail application cannot under- take a detailed examination of evidence and an elaborate discussion on the merits of the case, yet the court is required to indicate the prima facie rea- sons justifying the grant of bail. 60. In Prasanta Kumar Sarkar v. Ashis Chatter- jee, (2010) 14 SCC 496: (2011) 3 SCC (Cri) 765, this Court observed that where a High Court has granted bail mechanically, the said order would suffer from the vice of non-application of mind, ren- dering it illegal. This Court held as under with re- 8. 2025:HHC:41886 gard to the circumstances under which an order granting bail may be set aside. In doing so, the fac- tors which ought to have guided the Court's deci- sion to grant bail have also been detailed as under: (SCC p. 499, para 9) “9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. How- ever, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic princi- ples laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reason- able ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or flee- ing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.” (emphasis sup- plied) xxxxxxx 62. One of the judgments of this Court on the as- pect of application of mind and requirement of judi- cious exercise of discretion in arriving at an order granting bail to the accused is Brijmani 9. 2025:HHC:41886 Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170, wherein a three-Judge Bench of this Court, while setting aside an unrea- soned and casual order (Pappu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2856 and Pappu Singh v. State of Bihar, 2021 SCC OnLine Pat 2857) of the High Court granting bail to the ac- cused, observed as follows: (Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170]), SCC p. 511, para 35) “35. While we are conscious of the fact that lib- erty of an individual is an invaluable right, at the same time while considering an application for bail courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particu- larly, when the accusations may not be false, frivolous or vexatious in nature but are sup- ported by adequate material brought on record so as to enable a court to arrive at a prima facie conclusion. While considering an application for the grant of bail, a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the offence(s) alleged against an accused.” (emphasis supplied) 10. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. It was submitted that the grounds of arrest were not communicated to the petitioner, and the petitioner is entitled to bail on this ground. This submission is not acceptable. 10. 2025:HHC:41886 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) 12. Therefore, the plea regarding the non-supply of grounds of arrest will not be available to the petitioner. 13. The status report specifically mentions that the petitioner had forcible sexual intercourse with the victim, and he had also threatened to kill her. He promised to get her married to Nand Lal. These allegations are to be accepted as correct at this stage; therefore, prima facie, the petitioner is involved in the commission of an offence punishable under Section 64(2) of the BNS, which is punishable with 11. 2025:HHC:41886 imprisonment, which shall not be less than 10 years, which may extend to imprisonment for life and fine. 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 revolve. 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 re- lease on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve a sentence in the event of the Court pun- ishing him with imprisonment. In this perspective, the relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. J. indicated, when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment for it assigned by law is of extreme severity, the Court may reasonably pre- sume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, should he be enlarged. [ Mod. Law Rev. p. 50 ibid., 1852 I E & B 1] Lord Camp- bell, 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 12. 2025:HHC:41886 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 appearance at trial .... It is a very im- portant 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 elements will generally be found the most important: the charge, the nature of the evidence by which it is supported, and the punish- ment to which the party would be liable if con- victed. 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.” 7. It is thus obvious that the nature of the charge is the vital factor, and the nature of the evidence also is pertinent. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. 14. Considering the nature of the offence and the severity of the punishment, the petitioner cannot be held entitled to bail. 15. It was submitted that the co-accused Nand Lal has already been released on bail, and the petitioner is entitled to bail on the principle of parity. This submission will not help the petitioner. It was laid down by the Hon’ble Supreme Court in Sagar v. State of U.P., 2025 SCC OnLine SC 2584, that a person cannot be released on bail after applying the principle of parity without examining his role. It was observed: 13. 2025:HHC:41886 14. What flows from the above judgments, which have been referred to, only to the limited extent indicated above, is that the High Courts speak in one voice that parity is not the sole ground on which bail can be granted. That, undoubtedly, is the correct position in law. The word ‘parity’ is defined by the Cambridge Dictionary as “equality, especially of pay or position.” When weighing an application on parity, it is ‘position’ that is the clincher. The requirement of ‘position’ is not met only by involvement in the same offence. Position means what the person whose application is being weighed, his position in crime, i.e., his role, etc. There can be different roles played - someone part of a large group, intending to intimidate; an instigator of violence; someone who throws hands at the other side, instigated by such words spoken by another, someone who fired a weapon or swung a machete - parity of these people will be with those who have performed similar acts, and not with someone who was part of the group to intimidate the other by the sheer size of the gathering, with another who attempted to hack away at the opposer's limbs with a weapon. 16. The Court had released the co-accused Nand Lal because the allegations against him did not establish that the sexual intercourse was without the victim’s consent. However, in the case of the petitioner, the victim has made a specific allegation of forcible intercourse against him; thus, the petitioner cannot claim parity with the co-accused Nand Lal. 17. It was submitted that the matter was reported to the police belatedly. This submission will not help the petitioner. The victim stated that the petitioner had threatened 14. 2025:HHC:41886 her, and she could not report the matter to any person. Thus, she has provided a valid explanation for the delay. In any case, the delay in the sexual offences is not sufficient to discard the prosecution’s case. It was laid down by the Hon’ble Supreme Court in State of Himachal Pradesh Versus Sanjay Kumar @ Sunny (2017) 2 SCC 51, that the delay of three years in reporting the matter in a case of sexual assault is not fatal. Thus, the petitioner cannot claim bail on the ground of delay. 18 No other point was urged. 19. In view of the above, the present petition fails, and the same is dismissed. 20. 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. (Rakesh Kainthla) Judge 4th December, 2025 (meera)