Bail cannot be denied as punishment; the court must consider the totality of circumstances, including the nature of allegations and the applicant's cooperation with the investigation.

JUDGMENT :

Virender Singh, J.

1. Applicant Saood, apprehending his arrest, in case FIR No.20 of 2025, dated 29.03.2025, registered, under Sections 64(1), 69, 140(3), 238, 127(2), 127(4), 351(2), 3(5) of the Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as ‘the BNS’), has filed the present application, under Section 482 of the Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as ‘BNSS’), with a prayer to direct the Police/Investigating Officer of Police Station Nerwa, District Shimla, H.P., to release him on bail, in the event of his arrest.

2. According to the applicant, the alleged levelled against him are false and frivolous and motivated with an ulterior motive to harass and humiliate him.

3. As per the applicant, he and the prosecutrix had been in consensual live-in relationship for considerable time. The said relationship was on mutual consent, love and affection. In this regard, the applicant has relied upon the agreement, which allegedly had taken place between him and the prosecutrix.

4. Asserting the fact that the applicant and prosecutrix were in live-in relationship, as such, are well known to their family members, friends and neighbours.

5. All these facts have been pleaded to demonstrate that the allegations with regard to the commission of offence punishable under Sections 64, 137(2) and 127(2) of the BNS are baseless.

6. The applicant has given certain undertakings, for which, he is ready to abide by, in case, any direction is issued, under Section 482 of the BNSS.

7. On the basis of the above facts, a prayer has been made to allow the application.

8. When put to notice, the police has filed the status report, disclosing therein, that 29.03.2025, the prosecutrix, appeared before the police and moved a complaint, mentioning therein, that she had performed Nikah with Safroo, son of Alisher, about 12 years ago.

8.1. Out of the said wedlock, they have been blessed with one son, who is aged about 10 years. After their marriage, her husband allegedly started quarreling with her and used to beat her. He has also failed to give maintenance.

8.2. In the year 2024, the prosecutrix received a telephonic call on her mobile number 85447-68240 from mobile number 96137-88000, and the caller disclosed that he is Saood (applicant) and when the prosecutrix inquired the reasons for calling her, then applicant allegedly told her that he knew her, upon which, the prosecutrix requested him not to call in future. Thereafter, number of times, he made calls and they started talking to each other.

8.3. On 30.10.2024, the prosecutrix was allegedly thrown out from her matrimonial home and on 31.10.2024, she had gone to Nerwa market, where, her sister Hasina met her. In the meanwhile, she received a call of Saood (applicant), who made efforts to talk to her, however, the prosecutrix refused to talk to him.

8.4. Thereafter, when, the prosecutrix was proceeding towards her parental house, along with her sister, near ITI, applicant met her and made her to sit in the car, upon which, the prosecutrix requested her sister to go back, as, she is going to her parental house. In the car, another person was also there, who had disclosed his name as Mujaffer.

8.5. According to the prosecutrix, applicant, instead of taking her to Dwara, threatened her that in case, she will raise any noise, he will throw her out of the car, upon which, the prosecutrix got frightened and remained silent. Thereafter, he took her forcibly to his home at Faizpur and pursuaded her that he will marry her, after getting her divorced from Safroo. Saood (applicant) confined her in the room.

8.6. During night time, applicant Saood forcibly tried to ravish her, upon which, the prosecutrix told him to first perform Nikah with her, but, no heed was paid by the applicant and she was raped. Thereafter, applicant threatened her that he will finish her family, in case, she would disclose this fact to anyone.

8.7. Thereafter, the applicant repeatedly raped her for about 8 month