Himachal Pradesh High Court
Reserved On: 31.10.2025 vs Of on 11 November, 2025
2025:HHC:37742
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 1766 of 2025
.
Reserved on: 31.10.2025
Date of Decision: 11.11.2025.
Ajay Kumar ...Petitioner
Versus
of
State of Himachal Pradesh and another ...Respondents
Coram
rt
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No.
For the Petitioner : Mr Rahul Jaswal, Advocate,
(through video-conference).
For Respondent No.1 : Mr Jitender K. Sharma, Additional
Advocate General.
For Respondent No.2 : Ms Ragini Dogra, Advocate,
(through video-conference).
Rakesh Kainthla, Judge
The petitioner has filed the present petition for seeking pre-arrest bail in FIR No. 53 of 2025, dated 14.5.2025, registered at Police Station Gagret, District Una, H.P., for the commission of offences punishable under Sections 376, 511, 506 506 and 120-B read with Section 34 of the Indian Penal Code (IPC).
1Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 05/12/2025 21:15:58 :::CIS 22025:HHC:37742
2. It has been asserted that an FIR has been lodged after an inordinate delay of 10 years, which reflects the abuse of the .
process of law. The present dispute stems from an incident that occurred in the year 2014, when a compromise was effected between the victim's mother and co-accused Rakesh Shah. The informant made a complaint to Deputy Commissioner, Una, on of 24.11.2022 against the petitioner, which was marked to the Superintendent of Police, Una. The inquiry was conducted by the rt Women Police Station, Una. No case was found against the petitioner after the inquiry. Another inquiry was conducted, which culminated into proceedings under Section 107/151 of Cr.P.C. Allegations of rape were found false. The informant filed a zero FIR alleging sexual abuse by the petitioner. The Investigating Officer visited Hoshiarpur for the investigation. The victim could not identify the hotel where she was victimised. The victim sought the help of the District Legal Services Authority, Una and filed a complaint against the petitioner and co-accused.
The allegations are prima facie false. The information sent by the informant is covered by Section 162 of Cr.P.C., as an FIR No. 4 of 2023 was already pending investigation. The petitioner applied for pre-arrest bail, but his petition was dismissed. The FIR does ::: Downloaded on - 05/12/2025 21:15:58 :::CIS 3 2025:HHC:37742 not disclose that the victim's consent was obtained fraudulently.
The victim was aware of the facts, and she continued to engage in .
physical relations with the petitioner on her own. The consensual physical relation between two adults does not constitute the commission of rape. The Investigating Agency had initially concluded that no cognizable offence was made out and no FIR of was registered. The victim had also stated that the petitioner is not Ajay Kumar, against whom she had made the allegations. The rt petitioner is ready and willing to join the investigation and abide by the terms and conditions which the Court may impose. Hence the petition.
3. The State has filed a status report asserting that the accused had harassed the informant at the instance of the co-
accused. The informant's mother took her to the co-accused when she was 16 years old. The co-accused served water to her, and she became unconscious. The co-accused took her to a room and did some wrong act with her. The matter was compromised before the Panchayat, and the Panchayat also imposed a fine upon the petitioner. The co-accused told the informant's parents that he would not do anything wrong with her. The accused forced the informant to marry him. The informant initially ::: Downloaded on - 05/12/2025 21:15:58 :::CIS 4 2025:HHC:37742 agreed, but the informant found out that he was acting at the instance of the co-accused. The accused also gave some drink to .
the informant. She became unconscious, and the co-accused raped her. The informant made complaints against the co-
accused and the accused before Deputy Commissioner, Una. The complaint was sent to the police, and a Zero FIR was registered on of 15.05.2023. No action was taken. The informant made an online complaint. She also wrote letters to this Court. The matter was rt inquired through DLSA, Una. The police registered the FIR and conducted the investigation. The victim was medically examined, and as per the report, the possibility of sexual intercourse in the past could not be ruled out. The victim made a statement before the learned Magistrate under Section 183 of Bhartiya Nagrik Suraksha Sanhita, 2023, that she was raped by the co-accused.
She narrated the incident to her family members, but no action was taken by them. She came in contact with the petitioner, who assured the victim that he would get the matter solved between her and Rakesh. He called her to Talwara. He offered a cold drink to her on 5.1.2021 and she became unconscious. She regained unconscious in a room in a hotel. She found that the petitioner had raped her. The petitioner threatened the victim by saying that ::: Downloaded on - 05/12/2025 21:15:58 :::CIS 5 2025:HHC:37742 he had a video. The victim was taken to the spot, but she could not identify the hotel. The co-accused had filed a bail petition, which .
was dismissed by this Court. The petitioner joined the investigation, and as per the opinion of the Medical Officer, he was fit to perform sexual activity. The charge sheet has been filed before the Court. The supplementary charge sheets are to be filed of after the receipt of the reports from FSL. The mobile phone containing the video of the incident is to be recovered from the rt petitioner. Therefore, it was prayed that the present petition be dismissed.
4. A separate reply was filed by the victim asserting that she was aged 16 years on the date of the incident. She was not a party to any compromise between her mother and the co-accused. Her family fell into the trap of the religious propaganda of the co-accused. The victim subsequently found that the co-accused had sent the petitioner to wreak vengeance.
The inquiry was not fairly conducted, and the statements were fabricated to save the accused. The victim was declared to be mentally ill. The Hon'ble Supreme Court ultimately dismissed the pre-arrest bail of the co-accused. The police did not register the FIR, and the victim had to run from pillar to post to get it ::: Downloaded on - 05/12/2025 21:15:58 :::CIS 6 2025:HHC:37742 registered. The petitioner would abscond; intimidate the victim and the witnesses in case of his release on bail. Therefore, it was .
prayed that the present petition be dismissed.
5. I have heard Mr Rahul Jaswal, learned counsel for the petitioner, Mr Jitender K. Sharma, learned Additional Advocate General, for respondent No.1-State and Ms Ragini Dogra, learned of Legal Aid Counsel for the victim.
6. rt Mr Rahul Jaswal, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The police have filed the charge sheet, and the custodial interrogation of the petitioner is not required. The allegations in the FIR, even if believed to be true, do not constitute the commission of any cognizable offence. The petitioner 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. He relied upon the judgments titled Mahinder Kumar Vs. State of H.P., 2025:HHC:3553, Suresh Kumar Vs. State of H.P., Cr.MP(M) No. 166 of 2018, 2018:HHC:912, Deepak Pathania Vs. State of Punjab, 2019(4) Law Herald 2926, Govind Sajjan Rathod Vs. State of Maharashtra & Anr.
::: Downloaded on - 05/12/2025 21:15:58 :::CIS 72025:HHC:37742 SLP (Crl.) No. 12794 of 2024, decided on 4.2.2025, Kapil Vs. State of H.P., Cr.MP(M) No. 893 of 2015, 2015:HHC:13020, State of Rajasthan .
Vs. Surendra Singh Rathore, 2025 INSC 248, Sumedh Singh Saini Vs. State of Punjab and another, Cr. Appeal No. 827 of 2020, decided on 3.12.2020, Amol Bhagwan Nehul Vs. State of Maharashtra and another, 2025 SCC OnLine SC 1230, Mahesh Damu Khare Vs. State of of Maharashtra and another, Crl. Appeal No. 4882 of 2024, decided on 26.11.2024, Prashant Vs. State of NCT Delhi, Cr. Appeal No. 4721 of rt 2021, decided on 20.11.2024, Naim Ahmed Vs. State (NCT of Delhi) 2023 SCC Online SC 89, Pramod Suryabhan Pawar Vs. State of Maharashtra (2019) 9 SCC 608, and Sabita Paul Vs. State of West Bengal and another Cr. Appeal No. 1772 of 2024, decided on 22.3.2024 in support of his submission.
7. Mr Jitender K. Sharma, learned Additional Advocate General, for the respondent No.1-State, submitted that the petitioner is involved in the commission of a heinous offence. The bail petition of the co-accused was dismissed by the Hon'ble Supreme Court. The custodial interrogation of the petitioner is necessary because the mobile containing the video recording has to be recovered. The charge sheet was filed in compliance with ::: Downloaded on - 05/12/2025 21:15:58 :::CIS 8 2025:HHC:37742 Section 192 of BNSS, and a supplementary charge sheet is to be filed. Therefore, he prayed that the present petition be dismissed.
.
8. Ms Ragini Dogra, learned Legal Aid Counsel for the victim, submitted that the victim belongs to the poor section of society. The co-accused had raped her when she was 16 years old.
Subsequently, the petitioner contacted her and assured her of of help, but he also raped her. There was no promise of marriage or any consent. The victim had to run from pillar to post to get the rt FIR registered, which shows the influence of the accused. The accused would influence the investigation and the witnesses in case of his release on bail. The judgments cited on behalf of the petitioner do not apply to the present case. Hence, she prayed that the present petition be dismissed. She relied upon Srikant Upadhyay & Ors. Vs. State of Bihar & Anr., 2024 INSC 202 and Ms Y. State of Rajasthan and another, Cr. Appeal No. 649 of 2022, decided on 19.4.2022, in support of her submission.
9. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
10. It was laid down by the Hon'ble Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24: (2019) ::: Downloaded on - 05/12/2025 21:15:58 :::CIS 9 2025:HHC:37742 3 SCC (Cri) 509: 2019 SCC OnLine SC 1143 that the power of pre-
arrest bail is extraordinary and should be exercised sparingly. It .
was observed:
"69. Ordinarily, an arrest is a part of the procedure of the investigation to secure not only the presence of the accused but also several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power, and the of same has to be exercised sparingly. The privilege of pre- arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the rt nature and gravity of the accusation; the possibility of the applicant fleeing justice, and other factors to decide whether it is a fit case for the grant of anticipatory bail. Grant of anticipatory bail to some extent interferes with the sphere of investigation of an offence, and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule, and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy."
11. This position was reiterated in Srikant Upadhyay v.
State of Bihar, 2024 SCC OnLine SC 282, wherein it was held:
"25. We have already held that the power to grant anticipatory bail is extraordinary. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of the imagination, be said that anticipatory bail is the rule. It cannot be the rule, and the question of its grant should be left to the cautious and judicious discretion of the Court, depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious, as the grant of ::: Downloaded on - 05/12/2025 21:15:58 :::CIS 10 2025:HHC:37742 interim protection or protection to the accused in serious cases may lead to a miscarriage of justice and may hamper the investigation to a great extent, as it may sometimes lead to tampering or distraction of the evidence. We shall .
not be understood to have held that the Court shall not pass interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest, and we say that such orders shall be passed in eminently fit cases."
of
12. It was held in Pratibha Manchanda v. State of Haryana, (2023) 8 SCC 181: 2023 SCC OnLine SC 785 that the Courts should rt balance individual rights, public interest and fair investigation while considering an application for pre-arrest bail. It was observed:
"21. The relief of anticipatory bail is aimed at safeguarding individual rights. While it serves as a crucial tool to prevent the misuse of the power of arrest and protects innocent individuals from harassment, it also presents challenges in maintaining a delicate balance between individual rights and the interests of justice. The tightrope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court's discretion in weighing these interests in the facts and circumstances of each case becomes crucial to ensure a just outcome."
13. It was held in Devinder Kumar Bansal v. State of Punjab, (2025) 4 SCC 493: 2025 SCC OnLine SC 488 that pre-arrest bail can ::: Downloaded on - 05/12/2025 21:15:58 :::CIS 11 2025:HHC:37742 be granted in exceptional circumstances where the Court is of the view that the petitioner was falsely implicated in the case, and the .
presumption of innocence cannot be a reason to grant bail. It was observed at page 501:
"21. The parameters for the grant of anticipatory bail in a serious offence like corruption are required to be satisfied.
of Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has been falsely implicated in the crime or the allegations are politically motivated or are frivolous.
rt So far as the case at hand is concerned, it cannot be said that any exceptional circumstances have been made out by the petitioner-accused for the grant of anticipatory bail, and there is no frivolity in the prosecution.
22. In the aforesaid context, we may refer to a pronouncement in CBI v. V. Vijay Sai Reddy [CBI v. V. Vijay Sai Reddy, (2013) 7 SCC 452: (2013) 3 SCC (Cri) 563], wherein this Court expressed thus: (SCC p. 465, para 34) "34. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character 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/State and other similar considerations. It has also to be kept in mind that for the purpose of granting 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 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.::: Downloaded on - 05/12/2025 21:15:58 :::CIS 12
2025:HHC:37742 It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond a reasonable doubt." (emphasis in original and supplied) .
23. The presumption of innocence, by itself, cannot be the sole consideration for the grant of anticipatory bail. The presumption of innocence is one of the considerations which the court should keep in mind while considering the plea for anticipatory bail. The salutary rule is to balance the cause of the accused and the cause of public justice. Over-
of solicitous homage to the accused's liberty can, sometimes, defeat the cause of public justice.
14. The present petition is to be decided as per the rt parameters laid down by the Hon'ble Supreme Court.
15. The co-accused had approached the Hon'ble Supreme Court for bail. The Hon'ble Apex Court held in Rakesh Shah v. State of H.P., SLP (Crl.) No. 159 of 2025, decided on 7.10.2025, that FIR was lodged belatedly, but it could not be ignored that the police authorities did not register the FIR until the indulgence was made through the District Legal Services Authority on the instructions of the High Court. This finding, recorded by the Hon'ble Supreme Court, answers the petitioner's grievance regarding the delay in lodging the FIR. It was rightly submitted on behalf of the victim that she had to make many efforts to get the FIR registered, and the FIR was registered only after the intervention of this Court.
Therefore, the delay cannot be used as a circumstance against the ::: Downloaded on - 05/12/2025 21:15:58 :::CIS 13 2025:HHC:37742 victim, and the judgment in Sumeet Singh Saini (supra) does not apply to the present case.
.
16. The victim specifically stated in her FIR as well as statement before the learned Magistrate under Section 183 of BNSS that the petitioner had offered her a cold drink on 5.1.2021, and she became unconscious. When she regained consciousness, of she was in a room in a hotel and found that she had been raped.
This statement does not show any consent on the part of the rt victim; rather, it shows that the victim was unconscious and incapable of consent when she was raped. Hence, the judgments in Maninder Kumar (supra), Suresh Kumar (supra), Deepak Pathania (supra), Govind Sajjan Rathod (supra), and Kapil (supra) do not apply to the present case.
17. It was submitted that two FIRs have been registered against the same incident, which is impermissible. This submission will not help the petitioner. It is stated in the petition itself that zero FIR No. 4 of 2023 was registered. The investigation was conducted, and no action was taken; however, this matter cannot be seen while deciding the bail petition and is to be taken by the petitioner in appropriate proceedings.
::: Downloaded on - 05/12/2025 21:15:58 :::CIS 142025:HHC:37742
18. The allegations against the petitioner show that he had repeatedly raped the victim. The victim stated that she was .
acting at the instance of the co-accused. The medical report also shows that the victim was subjected to sexual intercourse in the past, which corroborates her version. Therefore, a prima facie case is made out against the petitioner.
of
19. It was laid down by Hon'ble Supreme Court in Ms X versus State of Maharashtra and another, 2023 STPL 3386 SC, rt [2023(2) Crimes 66 (SC)] that pre-arrest bail should not be granted in an offence punishable under Section 376 of IPC. It was observed:
"22. Surprisingly, none of the aforesaid aspects have been touched upon in both the impugned orders. The nature and gravity of the alleged offence have been disregarded. So has the financial stature, position and standing of the accused vis-a-vis the appellant/prosecutrix been ignored? The High Court has granted anticipatory bail in favour of the respondent No. 2/accused in a brief order of three paragraphs, having been swayed by the 'star variations in the narration of the prosecutrix' implying thereby that what was originally recorded in the FIR, did not make out an offence of rape, as defined in Section 375 IPC, which is an erroneous assumption. Even if the first Supplementary statement of the appellant/prosecutrix recorded in the evening hours of 6th August 2022, the date on which the FIR had been registered against the respondent No.2/accused in the first half of the same day, her second Supplementary statement recorded on 6th September 2022 ::: Downloaded on - 05/12/2025 21:15:58 :::CIS 15 2025:HHC:37742 and the Medico-Legal Report of the doctor who had examined the appellant/prosecutrix on 8th August 2022, are kept aside for a moment, we find that there was still sufficient material in the FIR that would prima facie attract .
the provision of Section 376, IPC. In our opinion, these factors ought to have dissuaded the High Court from exercising its discretion in favour of respondent No.2/accused for granting him anticipatory bail.
20. Therefore, keeping in view the nature of the offence, of pre-arrest bail cannot be granted to the petitioner.
21. It was submitted on behalf of the State that the rt petitioner had joined the investigation but did not produce a mobile phone containing the video. The recovery of a mobile phone is essential to establish the offence/guilt of the accused.
This submission has to be accepted as correct. The victim specifically asserted that the petitioner threatened her by saying that he had her video, which prima facie shows the existence of the video, and this fact is to be verified by the mobile phone. Thus, the plea of the police that the custodial interrogation of the petitioner is necessary is acceptable. It was laid down by the Hon'ble Supreme Court in State Versus Anil Sharma (1997) 7 SCC 187 that where custodial interrogation is required, pre-arrest bail should not be granted. It was observed: -
::: Downloaded on - 05/12/2025 21:15:58 :::CIS 162025:HHC:37742 "6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-
oriented than questioning a suspect who is well-ensconced with a favourable order under Section 438 of the Code. In a .
case like this, effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is of interrogated. Very often, interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not rt be countenanced, for such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offender"
22. A similar view was taken by the Delhi High Court in Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032, wherein it was observed: -
"13. One of the significant factors in determining this question would be the need for custodial interrogation. Without a doubt, custodial interrogation is more effective to question a suspect. The cocoon of protection afforded by a bail order insulates the suspect, and he could thwart interrogation, reducing it to futile rituals. But it must also be kept in mind that while interrogation of a suspect is one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out."
23. It was held in P Chidambaram (supra) that the grant of pre-arrest bail may hamper the investigations. It was observed:
::: Downloaded on - 05/12/2025 21:15:58 :::CIS 172025:HHC:37742 "83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful information, and also the materials which might have been concealed. Success in .
such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences, would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the of stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail."
24. Therefore, pre-arrest bail cannot be granted on this rt consideration as well.
25. No other point was urged.
26. In view of the above, the present petition fails, and it is dismissed. The observations made heretofore shall remain confined to the disposal of the petition and will have no bearing whatsoever on the merits of the case.
(Rakesh Kainthla) Judge 11th November 2025 (Chander) ::: Downloaded on - 05/12/2025 21:15:58 :::CIS