Research › Search › Judgment

Himachal Pradesh High Court · body

2026 DAILYLAW 16571 (HP)

Kishan Chand v. State of Himachal Pradesh

2026-03-16

Rakesh Kainthla

body2026
JUDGMENT : RAKESH KAINTHLA, J. The  petitioner has filed  the  present  petition  for seeking regular bail in F.I.R. No. 7 of 2024, dated 18.03.2024, registered at Police Station, Kullu, District Kullu, H.P., for the commission of offences punishable under Sections 376(2) (n), 376 (3) and 506 of the Indian Penal Code (in short IPC) and Section 6 of Protection of Children from Sexual Offences Act (in short POCSO Act). 2. It has been asserted that, as per the prosecution, the victim fell ill in October 2023. Her mother took her to the hospital, where the Doctors informed her that the victim was pregnant. The informant (victim’s mother) repeatedly asked her about the name of the child’s father, but she did not disclose anything. She stated that the child belonged to some unknown Nepali. The victim subsequently revealed that Kishan Bhai (the petitioner) had raped her 3-4 times and threatened to kill her if the incident was narrated to anyone. She also named Chandu @ Chandermani as the person who had done a wrong act with her. The matter was reported to the police, and the police registered the FIR. The allegations against the petitioner are false. The petitioner remained in custody for 1½ years. He is the sole earner of the family. He is a resident of District Kullu, and there is no likelihood of his jumping over the bail. The petitioner would abide by the terms and conditions that the Court may impose. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail. 3. The petition is opposed  by filing  a status report asserting that the victim became ill in October 2023. The informant took her to the hospital, where the doctor disclosed that the victim was pregnant. The informant asked the victim repeatedly about the name of the child’s father, but she did not disclose anything. The victim subsequently revealed that Kishan Bhai (present petitioner) and Chandermani had raped her. They had threatened to kill her in case the incident was revealed to any person. The police registered the FIR and investigated the matter. As per the medical examination of the victim, she was found pregnant. The police arrested the petitioner and Chandermani. The victim delivered a child subsequently. As per the report of analysis, the DNA of Kishan Chand was  inconsistent with his being the biological father of the baby. The police registered the FIR and investigated the matter. As per the medical examination of the victim, she was found pregnant. The police arrested the petitioner and Chandermani. The victim delivered a child subsequently. As per the report of analysis, the DNA of Kishan Chand was  inconsistent with his being the biological father of the baby. The DNA of Chandermani was consistent with his being the biological father of the baby. The police filed the charge sheet before the Court. The victim’s statement was recorded on 13.06.2025. The petitioner would intimidate the witnesses in case of his release on bail. Hence, the status report. 4. The victim was informed about the pendency of the bail petition, however, she did not appear before the Court to contest it. 5. I have heard Ms Rajni Gandhi, learned counsel for the petitioner and Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State. 6. Ms Rajni Gandhi, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The victim had not named any person as the father of the baby. She subsequently revealed the names of Kishan Chand and Chandermani. The DNA analysis ruled out the petitioner being the biological father of the baby. The petitioner was arrested on 19.03.2024. About 2 years have lapsed, and the trial has not concluded. The victim’s statement has been recorded, and no fruitful purpose would be served by detaining the petitioner in custody. Hence, she prayed that the present petition be allowed and the petitioner be released on bail. 7. Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the victim was a minor. She had named the petitioner as her rapist. The mere fact that the DNA analysis did not connect the petitioner to the baby does not show that the statement of the victim was incorrect. The offence is heinous and is punishable with life imprisonment. The petitioner should not be released on bail because of the gravity of the offence and severity of the punishment. Hence, he prayed that the present petition be dismissed. 8. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 9. The offence is heinous and is punishable with life imprisonment. The petitioner should not be released on bail because of the gravity of the offence and severity of the punishment. Hence, he prayed that the present petition be dismissed. 8. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 9. The parameters for granting bail were considered by the Hon’ble Supreme Court in Pinki v. State of U.P., (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 elabo- rating 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 consid- ered 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 issue. 8. Another relevant factor is whether the course of jus- tice 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 — Mod- ern Law Review, Vol. 81, Jan. 1968, p. 54.] 9. Thus, the legal principles and practice validate the Court considering the likelihood of the applicant inter- fering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the an- tecedents 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 oflences while on bail. In regard to habituals, it is part of crimi- nological history that a thoughtless bail order has en- abled the bailee to exploit the opportunity to inflict fur- ther crimes on the members of society. In regard to habituals, it is part of crimi- nological history that a thoughtless bail order has en- abled the bailee to exploit the opportunity to inflict fur- ther 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 supplied) 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 exercised on the basis of well-settled principles, having 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 evi- dence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing of the accused, circumstances which are peculiar to the accused, reasonable possibil- ity of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tam- pered 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. Sudarshan Singh, (2002) 3 SCC 598 : 2002 SCC (Cri) 688, speaking through Banerjee, J., emphasised that a court exercising discretion in matters of bail has to undertake the same ju- diciously. In highlighting that bail should not be granted as a matter of course, bereft of cogent reasoning, this Court observed as follows: (SCC p. 602, para 3) “3. Grant of bail, though being a discretionary order, but, however, calls for the exercise of such a discretion in a judicious manner and not as a matter of course. In highlighting that bail should not be granted as a matter of course, bereft of cogent reasoning, this Court observed as follows: (SCC p. 602, para 3) “3. Grant of bail, though being a discretionary order, 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 dependent upon the contextual facts of the matter being dealt with by the court and facts do al- ways vary from case to case. While placement of the accused in the society, though it may be considered by itself, cannot be a guiding factor in the matter of grant of bail, and the same should always be coupled with other circumstances warranting the grant of bail. The nature of the oflence 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 matrix of the matter.” (emphasis supplied) 59. In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 : 2004 SCC (Cri) 1977, this Court held that al- though it is established that a court considering a bail ap- plication cannot undertake a detailed examination of evi- dence and an elaborate discussion on the merits of the case, yet the court is required to indicate the prima facie reasons justifying the grant of bail. 60. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765, this Court ob-served that where a High Court has granted bail mechani- cally, the said order would suffer from the vice of non- application of mind, rendering it illegal. This Court held as under with regard 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 decision to grant bail have also been detailed as under: (SCC p. 499, para 9) “9. … It is trite that this Court does not, normally, in- terfere with an order passed by the High Court grant- ing or rejecting bail to the accused. In doing so, the fac- tors which ought to have guided the Court's decision to grant bail have also been detailed as under: (SCC p. 499, para 9) “9. … It is trite that this Court does not, normally, in- terfere with an order passed by the High Court grant- ing or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in com- pliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the fac- tors to be borne in mind while considering an appli- cation for bail are: (i) whether there is any prima facie or reason- able ground to believe that the accused had committed the oflence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the oflence 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 aspect of application of mind and requirement of judicious exercise of discretion in arriving at an order granting bail to the accused is Brijmani 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 unreasoned 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 accused, 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 liberty of an individual is an invaluable right, at the same time while considering an application for bail courts can- not lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a court to arrive at a prima facie conclu- sion. 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 con- sideration must be given to facts suggestive of the na- ture of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would fol- low a conviction vis-à-vis the oflence(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. The status report specifically mentions that the victim had not named any person as the father of the baby. She had initially claimed that some unknown Nepali was the father of the baby. She subsequently named the petitioner and Chandermani as the persons who had raped her. The report of the DNA analysis does not show that the petitioner is the father of the baby. The fact that the victim had not named the petitioner earlier, and the report of the analysis rules out the petitioner being the father of the baby, will make the petitioner’s involvement suspect. 12. The petitioner was arrested on 19.03.2024. About two years have elapsed since his arrest. The status report mentions that the statements of four witnesses, including the victim, have been recorded, therefore, the petitioner is not likely to influence the victim after his release. 13. It was submitted that the petitioner would intimidate the witnesses if released on bail. This apprehension can be removed by imposing conditions, and it is not sufficient to deny bail to the petitioner. 14. The petitioner claimed that he is a resident of District Kullu. This was not stated to be incorrect in the status report. This means that the petitioner is not likely to abscond after his release on bail. This apprehension can be removed by imposing conditions, and it is not sufficient to deny bail to the petitioner. 14. The petitioner claimed that he is a resident of District Kullu. This was not stated to be incorrect in the status report. This means that the petitioner is not likely to abscond after his release on bail. 15. In view of the above, the present petition is allowed, and the petitioner is ordered to be released on bail, subject to his furnishing bail bonds in the sum of Rs.1,00,000/- with one surety  in the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following conditions: - (I) The petitioner will not intimidate the witnesses, nor will he influence any evidence in any manner whatsoever. (II) The petitioner shall attend the trial on each and every hearing and will not seek unnecessary adjournments. (III) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the SHO concerned, the Police Station concerned and the Trial Court. (IV) The petitioner will surrender his passport, if any, to the Court; and (V) The petitioner will furnish his mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change. 16. It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail. 17. The petition stands accordingly disposed of. A copy of this order be sent to the Jail Superintendent, Central Model  Jail Kanda, District Shimla, H.P. and the learned Trial Court by FASTER. 18. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits.