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2026 DAILYLAW 16578 (HP)

Deepak Kumar 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 FIR No. 63 of 2025, dated 14.07.2025, registered at the Police Station Chowari, District Chamba, H.P, for the commission of offences punishable under Sections 64, 126(2), 351(2), 351 (3) read with Section 3(5) of Bhartiya Nyaya Sanhita (BNS) and Section 66E and 67 of Information and Technology (IT)Act, 2000. 2. It has been asserted that the petitioner was arrested on 15.07.2025. The charge sheet was filed before the Court on 10.11.2025, and the trial is pending adjudication in the Court of the learned Additional Sessions Judge, Chamba. The petitioner and victim knew each other and desired to marry each other. The victim’s parents lodged a false FIR against the petitioner when they found out about the relationship. The victim was examined on 15.01.2026, and she has resiled from her earlier statement. No fruitful purpose would be served by detaining the petitioner in custody. 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 informant made a complaint to the police that the victim told her (the informant) that Deepak (the present petitioner) and Chaman stopped her when she was going to her home. She was taken to 'Nali' where the petitioner raped her, and Chaman prepared the video of the incident. The petitioner and Chaman threatened the victim that her video would be made viral and her family members would be killed if she complained to any person. The police registered the F.I.R. and investigated the matter. The police checked the mobile phone and found the videos in it. The police arrested the petitioner. The petitioner and victim were medically examined. The video was shared with some people who told the victim's parents. As per the report of the analysis, human semen was detected in the underwear of the petitioner and the lower of the victim. The DNA profile obtained from the lower of the victim matched the DNA profile obtained from the blood of the petitioner. The Medical Officer issued the final report that there was no sign of vaginal intercourse, however, sexual assault could not be ruled out. The police filed the charge sheet before the Court, and the matter is listed for recording the statements of prosecution witnesses on 04.04.2026. The Medical Officer issued the final report that there was no sign of vaginal intercourse, however, sexual assault could not be ruled out. The police filed the charge sheet before the Court, and the matter is listed for recording the statements of prosecution witnesses on 04.04.2026. The co-accused, Chaman @ Goldy, was released on bail. The petitioner would intimidate the witnesses if released on bail. Hence, the status report. 4. I have heard M/s Anuj Gupta and Surjeet Kumar, learned counsel for the petitioner and Mr Ajit Sharma, learned Deputy Advocate General for the respondent. 5. Mr Anuj Gupta, learned counsel for the petitioner, submitted that the petitioner is innocent and that he was falsely implicated. The victim has denied the prosecution's case, and no fruitful purpose would be served by detaining the petitioner in custody. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. 6. Mr Ajit Sharma, learned Deputy Advocate General, for the respondent/State, submitted that the petitioner had earlier filed a bail petition which was dismissed by this Court. The subsequent bail petition only lies when there is a change in the circumstances. The petitioner has not stated any change in the circumstances. The report of the analysis shows that the petitioner’s DNA was found in the clothes of the victim, which prima facie establishes the prosecution's case. The offence is heinous, and the punishment is severe. Therefore, he prayed that the present petition be dismissed. 7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. It is undisputed that the petitioner had earlier filed the bail petition, which was dismissed by the Court on 13.08.2025. It was held in State of Maharashtra Vs. Captain Buddhikota Subha Rao (1989) Suppl. 2 SCC 605, that once a bail application has been dismissed, a subsequent bail application can only be considered if there is a change of circumstances. It was observed: “Once that application was rejected, there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact situation. And when we speak of change, we mean a substantial one, which has a direct impact on the earlier decision and not merely cosmetic changes, which are of little or no consequence. That is virtually overruling the earlier decision without there being a change in the fact situation. And when we speak of change, we mean a substantial one, which has a direct impact on the earlier decision and not merely cosmetic changes, which are of little or no consequence. 'Between the two orders, there was a gap of only two days, and it is nobody's case that during these two days, drastic changes had taken place necessitating the release of the respondent on bail. Judicial discipline, propriety and comity demanded that the impugned order should not have been passed, reversing all earlier orders, including the one rendered by Puranik, J., only a couple of days before, in the absence of any substantial change in the fact situation. In such cases, it is necessary to act with restraint and circumspection so that the process of the Court is not abused by a litigant and an impression does not gain ground that the litigant has either successfully avoided one judge or selected another to secure an order which had hitherto eluded him. 9. Similarly, it was held in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 that where an earlier bail application has been rejected, the Court has to consider the rejection of the earlier bail application and then consider why the subsequent bail application should be allowed. It was held: “11. In regard to cases where earlier bail applications have been rejected, there is a further onus on the court to consider the subsequent application for grant of bail by noticing the grounds on which earlier bail applications have been rejected and after such consideration, if the court is of the opinion that bail has to be granted then the said court will have to give specific reasons why in spite of such earlier rejection the subsequent bail application should be granted.” 10. A similar view was taken in State of T.N. v. S.A. Raja, (2005) 8 SCC 380 , wherein it was observed: 9. A similar view was taken in State of T.N. v. S.A. Raja, (2005) 8 SCC 380 , wherein it was observed: 9. When a learned Single Judge of the same court had denied bail to the respondent for certain reasons, and that order was unsuccessfully challenged before the appellate forum, without there being any major change of circumstances, another fresh application should not have been dealt with within a short span of time unless there were valid grounds giving rise to a tenable case for bail. Of course, the principles of res judicata are not applicable to bail applications, but the repeated filing of bail applications without there being any change of circumstances would lead to bad precedents. 11. This position was reiterated in Prasad Shrikant Purohit v. State of Maharashtra (2018) 11 SCC 458 , wherein it was observed: 30. Before concluding, we must note that though an accused has a right to make successive applications for the grant of bail, the court entertaining such subsequent bail applications has a duty to consider the reasons and grounds on which the earlier bail applications were rejected. In such cases, the court also has a duty to record the fresh grounds, which persuade it to take a view different from the one taken in the earlier applications. 12. The report of analysis clearly shows that human semen was detected on the victim’s lower. The DNA profile taken from the victim’s lower matched the DNA profile obtained from the blood sample of the petitioner. The incident was also recorded on the mobile phone, and the recording was circulated. Therefore, prima facie, there is sufficient evidence to connect the petitioner to the commission of the crime. 13. It was submitted that the victim has not supported the prosecution's version and therefore the petitioner is entitled to bail. This submission will not help the petitioner. It was laid down by the Hon’ble Supreme Court in X Vs. State of Rajasthan MANU/SC/1267/2024 that ordinarily, in serious offences Trial Court or the High Court should not entertain the bail application of the accused after the commencement of the trial and grant bail because of some discrepancy in the testimony. It was observed: - “14. It was laid down by the Hon’ble Supreme Court in X Vs. State of Rajasthan MANU/SC/1267/2024 that ordinarily, in serious offences Trial Court or the High Court should not entertain the bail application of the accused after the commencement of the trial and grant bail because of some discrepancy in the testimony. It was observed: - “14. Ordinarily, in serious offences like rape, murder, dacoity, etc., once the trial commences and the prosecution starts examining its witnesses, the Court, be it the Trial Court or the High Court, should be loath in entertaining the bail application of the Accused. 15. Over a period of time, we have noticed two things, i.e., (i) either bail is granted after the charge is framed and just before the victim is to be examined by the prosecution before the trial court, or (ii) bail is granted once the recording of the oral evidence of the victim is complete by looking into some discrepancies here or there in the deposition and thereby testing the credibility of the victim. 16. We are of the view that the aforesaid is not a correct practice that the Courts below should adopt. Once the trial commences, it should be allowed to reach its conclusion, which may either result in the conviction of the Accused or the acquittal of the Accused. The moment the High Court exercises its discretion in favour of the Accused and orders the release of the Accused on bail by looking into the deposition of the victim, it will have its own impact on the pending trial when it comes to appreciating the oral evidence of the victim. It is only if the trial gets unduly delayed and that, too, for no fault on the part of the Accused, the Court may be justified in ordering his release on bail on the ground that the right of the Accused to have a speedy trial has been infringed.” 14. Similarly, it was held by this Court in Suraj Singh v. State of H.P., 2022 SCC OnLine HP 268 that the Court exercises bail jurisdiction cannot appreciate the contradictions in the evidence. It was observed: 10. Similarly, it was held by this Court in Suraj Singh v. State of H.P., 2022 SCC OnLine HP 268 that the Court exercises bail jurisdiction cannot appreciate the contradictions in the evidence. It was observed: 10. Petitioner has placed reliance on the statements of witnesses already recorded by the learned Special Judge, in support of his argument to the effect that, from perusal of these statements, reasonable grounds can be entertained for concluding prima facie innocence of the petitioner. The arguments raised on behalf of the petitioner deserve to be rejected for the reason that this Court, while dealing with the bail application, will not appreciate the evidence being recorded during the trial. Undisputedly, only some of the witnesses out of the entire list of witnesses relied upon by the prosecution have been examined. In these circumstances, it is not prudent to form any opinion as to the innocence or guilt of the petitioner on the basis of such partial evidence. 15. Therefore, the petitioner cannot be released on bail simply because the victim has not supported the prosecution's version when the video recording of the incident is available, and the petitioner’s DNA was found on the victim’s clothing. 16. The offence punishable under Section 64 of the BNS is punishable with imprisonment which shall not be less than 10 years but which may extend to life. Therefore, the punishment is severe. 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 release 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 punishing him with imprisonment. We are concerned with the penultimate stage, and the principal rule to guide release 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 punishing 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 that 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 presume, 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 Campbell, 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 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 important 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 punishment to which the party would be liable if convicted. 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. 17. Considering the nature of the offence and the severity of the punishment, the petitioner is not entitled to bail. 18. The punishment to which the party may be liable, if convicted or conviction is confirmed, also bears upon the issue. 17. Considering the nature of the offence and the severity of the punishment, the petitioner is not entitled to bail. 18. No other point was urged. 19. In view of the above, the present petition fails, and it is dismissed. 20. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.