Himachal Pradesh High Court
Reserved On: 01.09.2025 vs State Of H.P on 8 September, 2025
2025:HHC:30459 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1935 of 2025 Reserved on: 01.09.2025 Date of Decision: 08.09.2025 Rekha ...Petitioner Versus State of H.P. ...Respondent Coram Hon'ble Mr. Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : Mr Arsh Chauhan, Advocate. For the Respondent : Mr. Lokender Kutlehria, Additional Advocate General.
Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking regular bail in F.I.R. No. 134 of 2024, dated 01.08.2024, registered for the commission of offences punishable under Sections 103(1), 61(2) and 238 read with Section 3(5) of the Bharatiya Nyaya Sanhita (BNS), 2023 at Police Station Manali, District Kullu, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2
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2. It has been asserted that the petitioner's husband was found missing, and his dead body was found while searching for him. The police investigated the matter and found that co-accused Rajeev Kumar and Birbal had killed him at the instance of the petitioner. The petitioner is innocent, and the prosecution's version is false. The petitioner had called the informant and expressed her concern about the sudden disappearance of her husband. There is no evidence against the petitioner except the call detail records, which are insufficient to infer a criminal conspiracy. The confessional statement made by the co-accused is inadmissible under Sections 22 and 23 of the Bharatiya Sakshya Adhiniyam (BSA),2023. The petitioner and her husband were leading a happy life, and the prosecution's version regarding the extramarital relations between the petitioner and the co-accused is false. The petitioner is a permanent resident of District Shimla. She has deep-rooted ties in society, and there is no chance of her absconding. The petitioner is a woman and is entitled to special consideration. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.
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3. The petition is opposed by filing a status report asserting that the informant and Subhash Chand (since deceased) were working in Hotel Manali Grand. Subhash Chand was residing with his family members in the house of his brother-in-law, Rajeev. Subhash Chand left for his home on 31.07.2024 at about 10:00 p.m.; however, he did not reach home. The petitioner called various persons, including the informant. A search was made for Subhash Chand, and his dead body was found in an orchard. The matter was reported to the police. The police registered the F.I.R. and conducted the investigation. The police seized the broken piece of a Baseball Bat from the spot. The police interrogated co-accused Rajeev based on suspicion. It was found that Rajeev had extramarital relations with the petitioner. Subhash Chand (since deceased) discovered the relationship and started beating the petitioner. Petitioner and co-accused conspired with Birbal to kill Subhash Chand. Rajeev and Birbal killed Subhash Chand by hitting him with a baseball bat. Birbal got the bat recovered, and Rajeev got the mobile of Subhash Chand recovered. The Police arrested Rajeev, Birbal and the petitioner. As per result of the analysis Baseball Bat recovered at the instance of Birbal matched with the broken 4 2025:HHC:30459 pieces lifted from the spot. 49.94 mg% ± 2.41 mg%(MU) ethyl alcohol was found in the blood of the deceased. A DNA profile could not be obtained from any of the articles recovered during the investigation. The injury suffered by Subhash Chand could have been caused by means of the Baseball Bat. The petitioner was in touch with the co-accused. All the co-accused had deleted the history of call details, SMS and internet calls. Two witnesses out of 23 witnesses cited by the prosecution have been examined. Hence, the status report.
4. I have heard Mr. Arsh Chauhan, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State.
5. Mr. Arsh Chauhan, learned counsel for the petitioner, submitted that the petitioner is innocent and the statement made by the co-accused against her is inadmissible in evidence. The petitioner is a woman and is entitled to special consideration. She would abide by the terms and conditions which the Court may impose. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. 5
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6. Mr. Lokender Kutlehria, learned Additional Advocate General, submitted that the petitioner had abetted the crime of murder. She is involved in a commission of heinous offence, and would commit a similar offence in case of her release on bail. Therefore, he prayed that the present petition be dismissed.
7. The parameters for granting bail were considered by the Hon'ble Supreme Court in Ajwar v. Waseem (2024) 10 SCC 768: 2024 SCC OnLine SC 974, wherein it was observed at page 783: -
"Relevant parameters for granting bail
26. While considering as to whether bail ought to be granted in a matter involving a serious criminal offence, the Court must consider relevant factors like the nature of the accusations made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, the role attributed to the accused, the criminal antecedents of the accused, the probability of tampering of the witnesses and repeating the offence, if the accused are released on bail, the likelihood of the accused being unavailable in the event bail is granted, the possibility of obstructing the proceedings and evading the courts of justice and the overall desirability of releasing the accused on bail. [Refer: Chaman Lal v. State of U.P. [Chaman Lal v. State of U.P., (2004) 7 SCC 525: 2004 SCC (Cri) 1974]; Kalyan Chandra Sarkar v. Rajesh Ranjan [Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977]; Masroor v. State of U.P. [Masroor v. State of U.P., (2009) 14 SCC 286 : (2010) 1 SCC (Cri) 1368]; Prasanta Kumar Sarkar v. Ashis Chatterjee [Prasanta Kumar Sarkar v. Ashis Chatterjee, 6 2025:HHC:30459 (2010) 14 SCC 496 : (2011) 3 SCC (Cri) 765]; Neeru Yadav v. State of U.P. [Neeru Yadav v. State of U.P., (2014) 16 SCC 508 : (2015) 3 SCC (Cri) 527]; Anil Kumar Yadav v. State (NCT of Delhi)[Anil Kumar Yadav v. State (NCT of Delhi), (2018) 12 SCC 129 : (2018) 3 SCC (Cri) 425]; Mahipal v. Rajesh Kumar [Mahipal v. Rajesh Kumar, (2020) 2 SCC 118 : (2020) 1 SCC (Cri) 558] .]
8. The Hon'ble Supreme Court cautioned the Courts against the superficial examination of the bail consideration in Shabeen Ahmad v. State of U.P., (2025) 4 SCC 172: 2025 SCC OnLine SC 479, and observed at page 177:
"18. A superficial application of bail parameters not only undermines the gravity of the offence itself but also risks weakening public faith in the judiciary's resolve to combat the menace of dowry deaths. It is this very perception of justice, both within and outside the courtroom, that courts must safeguard, lest we risk normalising a crime that continues to claim numerous innocent lives."
9. The present petition has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
10. The petitioner is a woman. Section 480 of Bhartiya Nagrik Surkasha Sanhita (BNSS) provides that the Court may direct a person accused of or suspected of commission of any non-bailable offence to be released on bail if such person is a child or a woman, or is sick or infirm. This provision applies to a person brought before the Court other than the High Court or 7 2025:HHC:30459 Court of Sessions, but the Courts have to keep this special provision in mind while considering the bail application of persons falling in the categories mentioned in Section 480 of BNSS. It was laid down by the Karnataka High Court in Nethra vs State of Karnataka (12.05.2022 - KARHC): MANU/KA/2055/2022 that a woman can be released on bail even in case of murder because of special provisions under Section 437 of CrPC. It was observed:
"In terms of Section 437 of the Cr.P.C., bail can be granted in a non-bailable offence in three circumstances as depicted in the proviso: (i) being a person below 16 years of age, (ii) a woman, and (iii) sick or infirm. The petitioner is a woman. She is entitled to consideration under Section 437 of the Cr.P.C. Before applying the aforesaid provision to the facts of the case and considering the case of the petitioner for enlargement on bail, it is germane to notice the application of the said provision by coordinate Benches of this Court, all in the case of offences punishable under Section 302 of the IPC and they being women.
xxxxxxx All the afore-quoted judgments rendered by the coordinate Benches of this Court were considering the purport of Section 437 of the Cr.P.C. and were cases where the accused No. 1 therein were women, and all of them were alleged of an offence punishable under Section 302 of the IPC for the commission of murder. It is also a matter of record that the alleged accomplice in the act of murder, Vijay Kumar, was granted bail on 13-04-2022 by the learned Sessions Judge. For the aforesaid facts, the statute, i.e., Section 437 of the Cr.P.C. and its application 8 2025:HHC:30459 in the judgments of three coordinate Benches would ensure the benefit of the petitioner to be enlarged on bail, notwithstanding the fact that the offence alleged is under Section 302 of the IPC. It is not the law that bail should always be denied in a case where the offence punishable is death or life imprisonment. In exceptional cases, if the statute permits and the facts are not being so gory and grave criminal antecedents shrouding the culprit, the consideration in such cases would be different."
11. A perusal of the status report shows that the petitioner has been implicated based on the statement made by the co-accused. It was rightly submitted on behalf of the petitioner that the statement made by the co-accused during the investigation is inadmissible in evidence. It was laid down by the Hon'ble Supreme Court in Dipakbhai Jagdishchandra Patel v. State of Gujarat, (2019) 16 SCC 547: (2020) 2 SCC (Cri) 361: 2019 SCC OnLine SC 588 that a statement made by co-accused during the investigation is hit by Section 162 of Cr.P.C. (corresponding to Section 181 of BNSS) and cannot be used as a piece of evidence. Further, the confession made by the co-accused is inadmissible because of Section 25 of the Indian Evidence Act (corresponding to Section 23 of BSA). It was observed at page 568:-
44. Such a person, viz., the person who is named in the FIR, and therefore, the accused in the eye of the law, can indeed be questioned, and the statement is taken by the police officer. A confession that is made to a police officer would be inadmissible, having regard to Section 25 of the 9 2025:HHC:30459 Evidence Act. A confession, which is vitiated under Section 24 of the Evidence Act, would also be inadmissible. A confession, unless it fulfils the test laid down in Pakala Narayana Swami [Pakala Narayana Swami v. King Emperor, 1939 SCC OnLine PC 1 : (1938-39) 66 IA 66: AIR 1939 PC 47] and as accepted by this Court, may still be used as an admission under Section 21 of the Evidence Act. This, however, is subject to the bar of admissibility of a statement under Section 161 CrPC.
Therefore, even if a statement contains an admission, the statement being one under Section 161, it would immediately attract the bar under Section 162 CrPC."
12. Therefore, no advantage can be derived by the prosecution from the statement made by the co-accused.
13. The prosecution is also relying upon the call detail records to show that the petitioner has conspired with the co- accused. However, the prosecution has not collected any other material to connect the petitioner with the conspiracy, and prima facie, the conspiracy cannot be inferred only from the call details record.
14. There is no evidence against the petitioner to connect her with the commission of crime, and the pre-trial detention of the petitioner is not justified; hence, the present application is allowed and the petitioner is ordered to be released on bail subject to her furnishing bail bonds in the sum of ₹1,00,000/- with one surety of the like amount to the satisfaction of the 10 2025:HHC:30459 learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions: -
(I) The petitioner will not intimidate the witnesses, nor will she 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 her passport, if any, to the Court; and (V) The petitioner will furnish her 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.
15. 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.
16. The petition stands accordingly disposed of. A copy of this order be sent to the Assistant Superintendent District Jail, Kullu, District Kullu, H.P. and the learned Trial Court through FASTER.
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17. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits.
(Rakesh Kainthla) Judge 08th September, 2025 (ravinder) Digitally signed by RAVINDER KUMAR RAVINDER DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=35ecb6f93c6891a7dae90f163e34d7ecaa420b13af1363204ab 0e0f5c87077dc, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=f6cc63c55495d14ce1f8623eacdb6cb9ef2c553803 537a2f53c4ee637cbebaff, CN=RAVINDER KUMAR KUMAR Reason: I am the author of this document Location:
Date: 2025-09-08 14:09:36