1 2026:HHC:101 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.2834 of 2025 Reserved on: 16.12.2025 Decided on : 01.01.2026 Arvind Kumar ...…. Petitioner Versus State of Himachal Pradesh …...Respondent Coram The Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner: Mr Sangram Singh Chandel, Advocate. For the Respondent: Mr Ajit Sharma, Deputy Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in F.I.R No. 83/25, dated 05.05.2025, registered at Police Station, Dharampur, District Solan, H.P. for the commission of offences punishable under Sections 137(2), 61(2) and 64 of Bhartiya Nyaya Sanhita, 2003 (BNS) and Sections 6 and 17 of Protection of Children from Sexual Offences Act (POCSO). 1 Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 2026:HHC:101 2. It has been asserted that, as per the prosecution, the informant made a complaint to the police that her niece, aged 14 years, was missing since the morning of 04.05.2025. She suspected the involvement of Deepak, Poonam and Akash. The police registered the FIR and investigated the matter. The police arrested Deepak and Poonam. The victim was recovered from a rental accommodation at Ludhiana. She named the petitioner Arvind Kumar as the person who had taken her with him. The police arrested the petitioner. The investigation is complete, and no recovery is to be made from the petitioner. The victim herself left the home with Poonam and Sandeep @ Deepak and she was not kidnapped. Akash was not arrayed as an accused. The victim did not complain about the sexual assault upon her. The allegations made against the petitioner do not satisfy the ingredients of the offences alleged against him. The co-accused has been released on bail by this Court. The petitioner is entitled to bail on the principle of parity. Therefore, 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 and victim were residing together. The informant left for her job on 04.05.2025 at 7:00 A.M. She 3 2026:HHC:101 returned on 4:30 P.M., and the victim was found missing. The informant searched for the victim but could not trace her. She called Poonam and Sandeep, who disclosed that the victim had accompanied them, and they dropped her off at Ludhiana Bus Stand. The police arrested Poonam and Sandeep. The police searched for the victim and recovered her on 25.06.2025. She revealed in her statement that Poonam and Sandeep had taken her with them to Ludhiana, from where she had accompanied Arvind Kumar (the present petitioner). The victim’s medical examination was conducted. Her samples were preserved. The petitioner was arrested, and the Medical Officer reported that the petitioner was capable of performing sexual intercourse. Samples were sent to SFSL, and as per the report, the DNA profile obtained from the pubic hair of the petitioner matched the DNA profile of the victim. A charge sheet was filed before the Court, and the matter was listed for consideration on the charge on 18.12.2025. The petitioner would abscond in case of his release on bail. Hence, the report. 4. I have heard Mr Sangram Singh Chandel, learned counsel for the petitioner and Mr Ajit Sharma, learned Deputy Advocate General, for the respondent-State. 4 2026:HHC:101 5. Mr Sangram Singh Chandel, learned counsel for the petitioner, submitted that the petitioner is innocent and that he was falsely implicated. The victim did not mention in her statement recorded under Section 180 of BNSS that she was subjected to sexual assault. Therefore, no case is made out against the petitioner for the commission of offences punishable under Section 64 of BNS and Section 6 of the POCSO Act. The police have filed the charge sheet, and no fruitful purpose would be served by detaining the petitioner in custody. The co-accused have been released on bail, and the petitioner is entitled to bail on the principle of parity. Therefore, 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 is involved in the commission of a heinous offence. He would intimidate the witnesses if released on bail. 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. 5 2026:HHC:101 8. 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.InGudikantiNarasimhuluv.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 a conviction is confirmed, also bears upon the issue. 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 applicant interfering 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 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 criminological history that a thoughtless bail order 6 2026:HHC:101 has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, based on evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.” (emphasis supplied) 57. In Prahlad Singh Bhativ.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 extracted 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 evidence 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 possibility of securing the presence of the accused at the trial, reasonable apprehension 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 inRam 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 judiciously. In highlighting that bail should not be granted as a 7 2026:HHC:101 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, 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 always vary from case to case. While the placement of the accused in society, though it may be considered by itself, cannot be a guiding factor in the matter of grant of bail, the same should always be coupled with other circumstances warranting the grant of bail. The nature of the offence 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 Sarkarv.Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977, this Court held that although it is established that a court considering a bail application cannot undertake 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 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 observed that where a High Court has granted bail mechanically, 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 factors 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, interfere with an order passed by the High Court 8 2026:HHC:101 granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance 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 factors to be borne in mind while considering an application for bail are: (i)whether there is any prima facie or reasonable 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 fleeing, 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 supplied) 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 Deviv. 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 Kumarv. State of Bihar, 2021 SCC OnLine Pat 2856 and Pappu Singhv. State of Bihar, 2021 SCC OnLine Pat 2857) of the High Court granting bail to the accused, observed as follows: 9 2026:HHC:101 (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 cannot 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 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) 9. Hon’ble Supreme Court held in State of Rajasthan v. Balchand, (1977) 4 SCC 308: 1977 SCC (Cri) 594: 1977 SCC OnLine SC 261 that the normal rule is bail and not jail, except where the gravity of the crime or the heinousness of the offence suggests otherwise. It was observed at page 308: 2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative. 3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of 10 2026:HHC:101 justice and must weigh with us when considering the question of jail. So also, the heinousness of the crime….” 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 revealed in her statement recorded under Section 180 of BNSS that the petitioner had subjected her to sexual assault. This is duly corroborated by the report of DNA analysis in which the DNA of the victim was found in the petitioner’s pubic hair. Prima facie, the contents of the status report corroborate the victim’s version that the accused had sexually assaulted her. 12. It was submitted that the victim had not specifically stated in her statement recorded by the police that the petitioner had assaulted her. This submission is only stated to be rejected. The victim stated in her statement (Annexure P-3) that the petitioner had put vermilion on her head and a Mangalsutra around her neck, and thereafter she and the petitioner resided as husband and wife. The statement that the victim and the petitioner resided as husband and wife can only lead to an inference of the sexual relations between them, and the victim was not required to say this fact in explicit words. The status report also mentions that the victim had complained 11 2026:HHC:101 to the Medical Officer about the sexual intercourse performed/attempted multiple times during her stay. Therefore, prima facie, the prosecution's version that the petitioner had sexually assaulted the victim has to be accepted as correct. 13. The victim was born on 23.07.2011. She was found missing on 04.05.2025. Thus, she was about 13 years old at the time of the incident. Hence, the ingredients of the commission of offences punishable under Section 6 of the POCSO Act, Sections 64 and 65 of the BNS are prima facie made out against the petitioner. 14. The offence under Section 6 of the POCSO Act is punishable with imprisonment for life or death. Thus, the offence is punishable with extreme punishment of death. 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 12 2026:HHC:101 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. 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 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 13 2026:HHC:101 liable, if convicted or conviction is confirmed, also bears upon the issue. 15. Considering the nature of the offence and the severity of the punishment, the petitioner is not entitled to bail. 16. It was submitted that the co-accused has been released on bail, and the petitioner is entitled to bail on the principle of parity. This submission cannot be accepted. 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: “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 the ‘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 14 2026:HHC:101 who attempted to hack away at the opposer's limbs with a weapon.” 17. In the present case, the petitioner had sexually assaulted the victim, whereas the co-accused had taken her with them to Amritsar. The victim denied the involvement of the co-accused and claimed that she had voluntarily gone to Amritsar herself. Therefore, the role of the co-accused is not similar to the petitioner, and the petitioner cannot claim any parity with the co-accused. 18. Hence, the present petition fails, and it is dismissed. 19. The observation made hereinbefore shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 1st January, 2026 (Nikita)