The Himachal Pradesh High Court recently dismissed a petition for pre-arrest bail under Section 64 of the Bhartiya Nyaya Sanhita (BNS) 2023, reinforcing that the gravity of the offence and the victim’s testimony outweigh the absence of a need for custodial interrogation. The judgment underscores the exceptional nature of pre-arrest bail and the necessity of balancing individual liberty with public interest and fair investigation.
Background & Facts
The Dispute
The petitioner, Paras Sharma, sought pre-arrest bail in connection with F.I.R. No. 02 of 2026, registered on 16.01.2026 at Women Police Station, Solan, for an offence punishable under Section 64 of the Bhartiya Nyaya Sanhita (BNS) 2023. The victim alleged that she was sexually assaulted by the petitioner in the early hours of 10.01.2026 after consuming alcohol during a night out with friends.
Key Facts
- The victim initially ignored her friend’s calls for a night out but eventually joined her on 10.01.2026 after being assured of her friend’s presence.
- The victim expressed discomfort with the petitioner due to his prior inappropriate behaviour but was reassured by her friend.
- The group, including the petitioner, gathered at Zero Point near Oachghat, where the victim consumed alcohol under peer pressure.
- The victim was on a video call until 4:30 a.m., after which she fell asleep. The petitioner lay on the same bed and allegedly began touching her inappropriately.
- The victim resisted and asked the petitioner to stop, but he proceeded to rape her.
- The victim messaged her friend to drop her home and later reported the incident to the police.
- The F.I.R. was lodged on 16.01.2026, and the investigation included a visit by the State Forensic Science Laboratory (SFSL) Junga to the crime scene.
- The petitioner joined the investigation as per the order of the Sessions Judge and underwent a medical examination.
- The SFSL report indicated that semen was not detected on the victim’s samples, but the petitioner’s DNA was found in the samples collected from him.
- The Medical Officer’s report stated that the possibility of sexual assault could not be ruled out, and the petitioner was capable of performing sexual intercourse.
Procedural History
- 16.01.2026: F.I.R. registered under Section 64 BNS.
- 11.03.2026: Charge-sheet filed before the court.
- 25.07.2026: Matter listed for service.
- The petitioner applied for bail before the Sessions Court, which dismissed the petition without recording any findings on custodial interrogation.
- 24.04.2026: Present petition for pre-arrest bail (Cr. MP(M) No. 104 of 2026) filed before the Himachal Pradesh High Court.
The Parties' Positions
For the Petitioner
- The petitioner argued that he was falsely implicated and that the victim’s version was inherently improbable.
- It was contended that the victim did not raise an alarm during the alleged assault, and no one visited the room to rescue her.
- The SFSL report did not detect semen on the victim’s samples, and the medical evidence did not corroborate the victim’s version.
- The charge-sheet had been filed, and no further custodial interrogation was required.
For the Respondent/State
- The State opposed the petition, asserting that the allegations were heinous and that the victim’s version could not be disbelieved at this stage.
- It was argued that the petitioner could intimidate the victim and witnesses if released on bail.
For the Victim
- The victim’s counsel adopted the State’s submissions and prayed for the dismissal of the petition.
Relief Sought
The petitioner sought pre-arrest bail, arguing that his custodial interrogation was not required and that he would abide by any conditions imposed by the court.
The Legal Issue
The central question was whether pre-arrest bail should be granted under Section 64 BNS when the victim’s testimony, though uncorroborated by medical evidence, prima facie established the commission of the offence, and the gravity of the offence outweighed the absence of a need for custodial interrogation.
Arguments Presented
For the Petitioner
- The petitioner’s counsel argued that the victim’s version was improbable, as she did not raise an alarm during the alleged assault.
- The SFSL report and medical evidence did not corroborate the victim’s allegations.
- The charge-sheet had been filed, and no further custodial interrogation was required.
For the Respondent/State
- The State contended that the allegations were serious and that the victim’s version could not be disbelieved at this stage.
- The petitioner could intimidate the victim and witnesses if released on bail.
The Court's Analysis
The Court relied on several Supreme Court precedents to emphasize the exceptional nature of pre-arrest bail and the need to balance individual liberty with public interest and fair investigation.
"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 Court cited P. Chidambaram v. Directorate of Enforcement, which held that pre-arrest bail interferes with the investigation and must be granted only in exceptional circumstances. The Court also referred to Srikant Upadhyay v. State of Bihar, which reiterated that pre-arrest bail is not a rule but an extraordinary remedy to be exercised with caution.
"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 Court relied on Pratibha Manchanda v. State of Haryana to emphasize the need to balance individual rights with public interest and the gravity of the offence. It also cited Devinder Kumar Bansal v. State of Punjab, which held that pre-arrest bail can be granted only in exceptional circumstances, such as false implication or politically motivated allegations.
The Court noted that the victim’s testimony, though uncorroborated by medical evidence, prima facie established the commission of the offence. It relied on Yedla Srinivasa Rao v. State of A.P., which held that when the victim states she did not consent, the Court must presume the absence of consent. This principle was reiterated in Anurag Soni v. State of Chhattisgarh.
"If sexual intercourse has been committed by the accused and if it is proved that it was without the consent of the prosecutrix and she states in her evidence before the court that she did not consent, the court shall presume that she did not consent."
The Court also referred to Ms X v. State of Maharashtra, which held that pre-arrest bail should not be granted in offences under Section 376 IPC (equivalent to Section 64 BNS). It emphasized that the nature and gravity of the offence must be considered, and the High Court had erred in granting anticipatory bail in that case.
Finally, the Court relied on Sumitha Pradeep v. Arun Kumar C.K., which held that the absence of a need for custodial interrogation alone cannot be a ground for granting pre-arrest bail. The Court must consider the prima facie case, the nature of the offence, and the severity of the punishment.
"Custodial interrogation can be one of the grounds to decline anticipatory bail. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail."
The Verdict
The petition for pre-arrest bail was dismissed. The Court held that the gravity of the offence, the victim’s testimony, and the possibility of the petitioner influencing the victim and witnesses outweighed the absence of a need for custodial interrogation. The observations made in the judgment are confined to the disposal of the petition and will not affect the merits of the main case.
What This Means For Similar Cases
Gravity of Offence Outweighs Custodial Interrogation
- Practitioners must emphasize that the gravity of the offence and the victim’s testimony are paramount in pre-arrest bail applications, even if custodial interrogation is not required.
- Courts are likely to deny pre-arrest bail in cases involving sexual offences under Section 64 BNS unless exceptional circumstances, such as false implication, are established.
Victim’s Testimony Presumed True in Absence of Consent
- In cases of alleged sexual assault, if the victim states that she did not consent, the Court must presume the absence of consent, as held in Yedla Srinivasa Rao v. State of A.P. and Anurag Soni v. State of Chhattisgarh.
- The defence cannot argue that the absence of corroborative medical evidence or delayed reporting weakens the victim’s version.
Pre-Arrest Bail is Exceptional, Not a Rule
- Pre-arrest bail is an extraordinary remedy and should not be granted as a matter of course, especially in serious offences.
- The Court will consider the prima facie case, the nature of the offence, and the severity of punishment before granting pre-arrest bail, as reiterated in Sumitha Pradeep v. Arun Kumar C.K.
- Practitioners should be prepared to address these factors comprehensively in bail applications.
