IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP (M) No.131 of 2026 Date of Decision:03.03.2026 ----------------------------------------------------------------------------------------- Ankush Kumar ...Petitioner Versus State of Himachal Pradesh & Anr. …Respondents ----------------------------------------------------------------------------------------- Coram: The Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting?1 ---------------------------------------------------------------------------------------- For the petitioner : Mr. K.B. Khajuria, Advocate. For the respondent : Mr. Rajan Kahol & Mr. Vishal Panwar, Additional Advocates General with Mr. Ravi Chauhan & Mr. Anish Banshtu, Deputy Advocates General. IO/ASI Sunnder Lal, PS Tissa, District Chamba, Himachal Pradesh, present in person. ----------------------------------------------------------------------------------------- Sandeep Sharma, J. (Oral) Bail petitioner namely Ankush Kumar, who is behind bars since 17.12.2025, has approached this Court in the instant proceedings filed under Section 483 of Bharatiya Nagrik Suraksha Sanhita (hereinafter ‘BNSS’) for grant of regular bail in case FIR No.113 of 2025, dated 15.12.2025, under Sections 69 and 115 of Bharatiya Nyaya Sanhita (hereinafter ‘BNS’), registered at Police Station Tissa, District Chamba, H.P. 1 Whether reporters of the local papers may be allowed to see the judgment? 2. Respondent-State has filed status report and ASI Sunnder Lal has come present with record. Record perused and returned. 3. Close scrutiny of record/status report reveals that on 15.12.2025, victim-prosecutrix (name withheld to protect her identity) lodged a complaint at Police Station detailed herein above, alleging therein that since March, 2024, she was in relation with the bail-petitioner. She alleged that after March, 2024, she had been frequently meeting the bail-petitioner and also developed physical relations with him at Baddi, where she was working. She alleged that bail-petitioner neither kept his promise to marry her nor solemnized the marriage. In nutshell, victim-prosecutrix alleged that she has been repeatedly sexually assaulted by the bail- petitioner on the pretext of marriage, but now he has refused to marry her. In the afore background, FIR, as detailed hereinabove, came to be lodged against the bail-petitioner and he is behind bars since 17.12.2025. Since challan stands filed in the competent Court of law and nothing remains to be recovered from the bail- petitioner, he has approached this Court in the instant proceedings for grant of regular bail. 4. While fairly acknowledging factum with regard to filing of challan in the competent Court of law, Mr. Rajan Kahol, learned 2 Additional Advocate General, states that though nothing remains to be recovered from the bail-petitioner, but keeping in view the gravity of offence alleged to have been committed by him, he does not deserve any leniency, rather needs to be dealt with severely. Mr. Kahol, states that careful perusal of statements given by the victim-prosecutrix before the Police as well as Judicial Magistrate suggests that bail-petitioner, taking undue advantage of the situation, has repeatedly sexually assaulted the victim-prosecutrix on the pretext of marriage, but now he has refused to marry her, as such, he has been rightly booked under Sections 69 and 115 of BNS. He states that since statement of the victim-prosecutrix is yet to be recorded in the competent Court of law, it may not be in the interest of justice to enlarge him on bail, in which event he may not only flee from justice, but may cause harm to the victim- prosecutrix. 5. Having heard learned counsel for the parties and perused the material available on record, this Court finds that victim-prosecutrix, aged 24 years, has been in contact with the bail-petitioner since March, 2024. As per own statements of the victim-prosecutrix made before the Police as well Judicial Magistrate, she had been meeting the bail-petitioner frequently and during this period, they also developed physical relations. 3 Statement of the victim-prosecutrix recorded under Section 183 of BNSS before the Judicial Magistrate clearly reveals that she had solemnized marriage with the bail-petitioner in a temple and thereafter, they were to get their marriage registered; but before before same could be done, allegedly bail-petitioner refused to register the marriage and to take the victim-prosecutrix along. Since statement of victim-prosecutrix itself suggests that she, of her own volition, had been joining the company of the bail- petitioner with whom she wanted to solemnize marriage and during this period, she, of her own, had developed physical relations with him, coupled with the fact that she has already solemnized marriage in the temple, prayer made on behalf of the petitioner for grant of bail deserves to be considered. Otherwise also, careful perusal of Section 69 of BNS clearly reveals that whoever, by deceitful means, including making a false promise to marry a woman, has sexual intercourse with her, commits an offence. Such sexual intercourse shall not amount to rape, but shall be punishable with imprisonment which may extend to ten years. Since sexual assault, if any, committed on the pretext of marriage does not fall under the definition of rape, coupled with the fact that there is material evidence available on record suggestive of the fact that victim-prosecutrix, who was otherwise capable of 4 understanding the consequences of her being in the company of the bail-petitioner, had been joining the company of the bail- petitioner for more than two years prior to lodging of FIR, but yet took no steps, if any, for lodging of FIR against the bail-petitioner for his having allegedly committed offence under Section 69 of BNS. Moreover, as per own statement of the victim-prosecutrix, she has already solemnized marriage with the bail-petitioner, if it is so, prayer made on behalf of the petitioner for grant of regular bail deserves to be considered. Though case of the bail-petitioner shall be decided in totality of evidence collected on record by the prosecution, but keeping in view of the aforesaid glaring aspects of the matter, this Court sees no reason to let the bail-petitioner incarcerate in jail for indefinite period during trial, especially when he has already suffered for more than two months. 6. Hon’ble Apex Court as well as this Court have held in catena of cases that one is deemed to be innocent till the time his/her guilt is not proved, in accordance with law. Since guilt, if any, of the bail petitioner is yet to be established on record by the prosecution by leading cogent and convincing evidence, this court sees no reason to curtail the freedom of the bail petitioner for an indefinite period during trial. Apprehension expressed by learned Additional Advocate General, that in the event of being enlarged 5 on bail, bail petitioner may flee from justice can be best met by putting the bail petitioner to stringent conditions. 7. The Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon’ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under: 2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home 6 (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when  required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in  the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in 7 prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons 8. Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. 9. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 8 10. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced. 11. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail. Accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs.1,00,000/- with two sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions: (a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) He shall not leave the territory of India without the prior permission of the Court. (e) He shall surrender passport, if any, before the investigating agency. 9 12. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 13. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of. 14. The bail petitioner is permitted to produce the copy of the order downloaded from the High Court Website and the learned trial Court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise. (Sandeep Sharma) Judge March 03, 2026 (sunil) 10