_______________________________________________________________ vs State Of Himachal Pradesh

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MPM No. 2790 of 2025 Reserved on: 27.11.2025 . Date of Decision:09.12.2025 _______________________________________________________________ Arvind Thakur ....Petitioner Versus State of Himachal Pradesh ....Respondent of Coram: Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No rt For the Petitioner : Mr. Vivek Singh Attri, Advocate. For the Respondent- : Mr. Jitender K. Sharma, State Additional Advocate General. Rakesh Kainthla, Judge: The petitioner has filed the present petition for seeking pre-arrest bail in FIR No.31/25, dated 14.11.2025, registered at Woman Police Station, Nahan, District Sirmour, H.P., for the commission of offences punishable under Section 64 (2) (m) and Section 69 of Bharatiya Nyaya Sanhita, 2023 (in short BNS Act). 2. It has been asserted that, as per the prosecution, the petitioner was in a friendly relationship with the victim in the year 2020. He exploited her sexually for two years on the false pretext of marriage. The petitioner used to stay in the _________________________ Whether reporters of Local Papers may be allowed to see the judgment? ::: Downloaded on - 09/12/2025 20:38:47 :::CIS 2.( 2025:HHC:42660 ) room of the victim whenever he would come on leave from his duty. He had promised to marry her in the presence of her . brother, sister and friends. The victim subsequently came to know that the petitioner was getting married to someone else. The victim went to Renuka Fair on 01.02.2025. The petitioner accompanied the victim to her room. The victim asked the of petitioner to leave as he was already engaged. However, he stayed in the room of the victim and had forcible sexual rt relations with her. The petitioner blocked the victim's phone number. The victim tried to contact the petitioner, but she was unable to do so; hence, she filed a false FIR against the petitioner. The parties have been friends since 2020. The petitioner never promised to marry the victim; rather, he made it clear to her that he would marry as per the choice of his parents. The petitioner performed his arranged marriage on 20.10.2025 and informed the victim about it. The victim performed sexual intercourse with the petitioner between 01.11.2025 and 05.11.2025 despite knowing that the petitioner was engaged to someone else. The victim did not make any protest. A false complaint was made by the victim to extract money from the petitioner. The victim was active on Facebook, and she was posting reels while singing and ::: Downloaded on - 09/12/2025 20:38:47 :::CIS 3.( 2025:HHC:42660 ) dancing. She was not suffering any emotional trauma after coming to know about the petitioner's marriage. The petitioner . is a respectable member of society. He is serving in the Indian Army, and his arrest would adversely affect his career. The petitioner is 31 years of age, and the victim is 30 years old. She knows about her welfare. No recovery is to be made from of the petitioner. The petitioner would abide by the terms and conditions that the Court may impose. Hence, the petition. 3. rt I have heard Mr Vivek Singh Attri, learned Counsel for the petitioner and Mr. Jitender K. Sharma, learned Additional Advocate General for the State. 4. Mr. Vivek Singh Attri, learned counsel for the petitioner, submitted that the relationship between the parties was consensual in nature, and it is a case of love gone sour. The victim made false allegations against the petitioner when she found that the petitioner was getting married somewhere else. The allegations in the FIR, even if taken to be correct, do not constitute the commission of the cognizable offence. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. He relied upon the judgments of Hon'ble Supreme Court in Jothiragawan versus State 2025: INSC:347, Jaspal Singh Kaural VS State of ::: Downloaded on - 09/12/2025 20:38:47 :::CIS 4.( 2025:HHC:42660 ) NCT of Delhi & Anr SLP No.4007 of 2024, decided on 07.04.2025 and Prithivi Rajan vs State SLP (Crl.) . No.12663/2022, decided on 20.01.2025 in support of his submission. 5. Mr Jitender K. Sharma, learned Additional Advocate General for the respondent/State, submitted that the petitioner of had made a false promise to marry the victim and developed physical relations with her. He visited the victim's room on rt 05.11.2025 and had physical relations with her even though he was aware of the fact that he was engaged to someone else, and could not have married the victim. The offence alleged against the petitioner is heinous, and the petitioner is not entitled to the concession of pre-arrest bail; hence, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions made at the Bar and have gone through the records of the case carefully. 7. It was laid down by the Hon'ble Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24: (2019) 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: ::: Downloaded on - 09/12/2025 20:38:47 :::CIS 5.( 2025:HHC:42660 ) "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 . 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 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. of 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 rt 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." 8. 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 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 ::: Downloaded on - 09/12/2025 20:38:47 :::CIS 6.( 2025:HHC:42660 ) 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." . 9. It was held in Pratibha Manchanda v. State of Haryana, (2023) 8 SCC 181: 2023 SCC OnLine SC 785 that the Courts should balance individual rights, public interest and fair investigation while considering an application for pre- of arrest bail. It was observed: "21. The relief of anticipatory bail is aimed at rt 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." 10. 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 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: ::: Downloaded on - 09/12/2025 20:38:47 :::CIS 7.( 2025:HHC:42660 ) "21. The parameters for the grant of anticipatory bail in a serious offence like corruption are required to be satisfied. 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. 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. of 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. rt 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. 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 ::: Downloaded on - 09/12/2025 20:38:47 :::CIS 8.( 2025:HHC:42660 ) 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-solicitous homage to the . accused's liberty can, sometimes, defeat the cause of public justice. 11. The present petition is to be decided as per the parameters laid down by the Hon'ble Supreme Court. 12. The status report mentions that the petitioner told of the victim on 18.10.2025 that his family members had arranged his marriage somewhere else. The victim stopped rt talking to the petitioner after this; however, the petitioner accompanied the victim to her room on 04.11.2025, where he raped her. He again raped her on 05.11.2025. These allegations are to be accepted as correct at this stage, and prima facie show the commission of an offence punishable under Section 64 (2) of BNSS. 13. The victim also asserted that the petitioner promised to marry her in the year 2024 and thereafter maintained a sexual relationship with her. The petitioner asserted in the petition that he had told the victim that he would not be able to marry her, and that he would marry as per the wishes of his family members. This assertion shows that the petitioner had no intention to marry her from the beginning. ::: Downloaded on - 09/12/2025 20:38:47 :::CIS 9.( 2025:HHC:42660 ) 14. Section 69 of BNS punishes a person who has sexual intercourse with a woman by making a promise to marry a . woman, without any intention of fulfilling the same. Therefore, the allegations in the FIR prima facie constitute the commission of an offence punishable under Section 69 of the BNS Act. of 15. The legislature has enacted a specific offence under Section 69 of having sexual intercourse with a woman by rt deceitful means, which is independent of Section 64, which deals with the punishment for rape. The rape is defined as a sexual intercourse without consent or with consent when it is vitiated. The Hon'ble Supreme Court had held in Jothiragawan (supra), Prithivirajan (supra) and Jaspal Singh Kaural (supra) that a consent vitiated by fraud is no consent. These judgments will not help the petitioner because Section 69 focuses on making a false representation by the accused and not on the woman's consent to the sexual act. Therefore, it is doubtful that the judgments interpreting the provisions of rape would be applicable while interpreting Section 69 of BNS. Further, in Jaspal Singh Kaural (supra), the victim was married, and she could not have married the accused during the subsistence of the marriage. In ::: Downloaded on - 09/12/2025 20:38:47 :::CIS 10.( 2025:HHC:42660 ) Jothiragawan (supra), it was held that the victim had consented, and the consent was not influenced by the promise . to marry. In Prithivirajan (supra), the Hon'ble Supreme Court found that there was nothing to suggest that the promise made by the accused was false and frivolous. In the present case, the petition itself mentions that the petitioner had no of intention of marrying the victim, and he intended to marry the girl selected by his parents; therefore, this judgment will not rt help the petitioner in the present case. 16. There is a force in the submission of Mr Jitender K. Sharma, learned Additional Advocate General for the respondent/State, that the allegations against the petitioner are heinous in nature. It was laid down by the Hon'ble Supreme Court in Ms X versus State of Maharashtra and another, 2023 STPL 3386 SC, [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 ::: Downloaded on - 09/12/2025 20:38:47 :::CIS 11.( 2025:HHC:42660 ) 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 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 of 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 rt in favour of respondent No.2/accused for granting him anticipatory bail. 17. In view of the above, the petitioner cannot be held entitled to bail; consequently, the present petition is dismissed. 18. The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 09,December, 2025 (meera) ::: Downloaded on - 09/12/2025 20:38:47 :::CIS