Himachal Pradesh High Court: In a petition filed by the accused for a pre-arrest bail in a case registered for the commission of offences punishable under Sections 221, 224, 351(2) and 78 of the Bharatiya Nyaya Sanhita, 2023 (‘BNS’), a Single Judge Bench of Rakesh Kainthla, J., allowed the present petition, observing that Section 78 BNS was the only non-bailable offence and its ingredients were not satisfied in the present set of facts and further held that the custodial interrogation of the accused was also not needed, making his detention useless.
Background
The informant, Regional Officer in Himachal Pradesh, State Pollution Control Board, made a complaint to the police, asserting that on 07-10-2024, the accused, who was the proprietor of K.K. Enterprises, tried to intimidate him by hitting his vehicle at a lonely place between Baddi and Shimla. The informant had acted against the accused because of which the accused acted like that. The accused also recorded videos of the informant’s wife and took photographs of her. He tried to compel the informant to grant undue favours to him.
The police registered the FIR. and conducted the investigation. The police obtained the call detail record. The informant’s location was found to be at SAS Nagar, Mohali, whereas the accused’s location was found to be at Sheetla Mata Shishma, Punjab, Kharad and thereafter at village Mullapur which showed that the accused was following the informant. The accused was called to the police station regarding the informant’s complaint, dated 23-04-2025. The accused asserted that he had filed complaints against the informant regarding bribe demands from various persons, and the informant had filed the present FIR against the accused as a counterblast to those complaints.
The informant also filed objections to the present petition, asserting that he made a complaint to the Member Secretary, State Pollution Control Board on 08-10-2014. He also filed a complaint against the accused and another person on 12-12-2024, but no action was taken. Hence, the complaint was made to the police. He further submitted that he had earlier acted against the accused for violation of environmental law and releasing him on bail would endanger the informant’s life. Therefore, he prayed that the present petition be dismissed.
The accused’s counsel submitted that only the offence punishable under Section 78 BNS was non-bailable and the allegations in the FIR did not constitute the commission of the said offence. Hence, he prayed that the present petition be allowed, and the accused be released on bail.
Analysis and Decision
The Court relied on P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24, wherein the Supreme Court observed that “the grant of anticipatory bail to some extent interfered with the sphere of investigation of an offence, and hence, the Court must be circumspect while exercising such power. Anticipatory bail was not to be granted as a matter of rule, and it must be granted only when the Court was convinced that exceptional circumstances existed to resort to that extraordinary remedy”. The same was reiterated in Srikant Upadhyay v. State of Bihar, 2024 SCC OnLine SC 282. The Court also referred to Pratibha Manchanda v. State of Haryana, (2023) 8 SCC 181, where it was observed that the Courts must balance individual rights, public interest and fair investigation while considering an application for pre-arrest bail.
The Court explained that Section 78 BNS punished a person who followed a woman and contacted her to foster personal interaction repeatedly despite a clear indication of disinterest by her or monitored her internet use, email or other form of electronic communication. The Court opined that prima facie, the allegations made in the complaint did not satisfy the definition of stalking as there was nothing to show that the accused had followed the informant’s wife and contacted her to foster personal interaction. The only allegation was that he had taken her photographs.
The Court noted that the status report showed the informant’s location at SAS Nagar, Mohali, whereas the accused was found at Sheetla Mata Shishma Kharad and SAS Nagar, Punjab on 07-10-2025. However, as per the complaint, the informant was going to Shimla, and the accused had tried to hit his vehicle at a desolate place on 07-10-2024. Thus, the call detailed record did not corroborate the allegations made in the FIR.
The Court opined that since the custodial interrogation of the accused was not required, no fruitful purpose would be served by detaining the accused in custody. Consequently, the Court allowed the present petition.
[Krishan Kumar Kasana v. State of H.P., 2025 SCC OnLine HP 3602, decided on 06-08-2025]
Advocates who appeared in this case:
For the Petitioner: Anand Sharma, Senior Advocate, with Karan Sharma, Advocate.
For the Respondent: Parshant Sen, Deputy Advocate General.
For the Informant: Jyotirmay Bhatt, Advocate.
