JUDGMENT : Ranjan Sharma, J. Petitioner–Ashok Kumar has come up before this Court, seeking pre-arrest bail, under Section 438 of the Code of Criminal Procedure (hereinafter referred to as ‘Cr.P.C.’), originating from FIR No.27 of 2024, dated 26.01.2024, under Sections 376, 451, 504 and 506 of the Indian Penal Code, registered with Police Station, Dharamshala, District Kangra, [H.P.]. 2. The background facts of the case are that the bail petitioner, Ashok Kumar, is serving in the Armed Forces in Dogra Regiment since 2005. 2(i). The case set up by the bail petitioner is that the complainant-prosecutrix [X], [name withheld], had sent an e-mail on 26.01.2024 to Police Post, Yol Cantt., Dharamshala. In the complaint, the prosecutrix alleged that the father of the prosecutrix and the present bail petitioner were serving in the same Unit and the bail petitioner and prosecutrix known each other for the last sixteen years. It is the case of the complainant that they married each other in Raghu Nath Temple in the year 2022. However, the factum of marriage has been denied by the bail petitioner in totality. 2(ii). It is the further case, of the bail petitioner, that he has been falsely implicated in the matter, which stood compromised with the intervention of Gram Panchayat, Tikka Bani [Yol], on 25.12.2023 [Annexure P-1]. The bail petitioner further submits that he is married and is having a son, whereas, the complainant-prosecutrix is also married having three minor children. It is averred in the bail petition that the bail petitioner is innocent and has falsely been roped in the accusation under Sections 376, 451, 504 and 506 of the Indian Penal Code, which are not made out on facts as well as law. 2(iii). Notably, the bail petitioner had filed an application for bail before the Learned Special Judge-III, Kangra at Dharamshala, but the same was withdrawn on 02.02.2024 [Annexure P-3]. It is in this background that the bail petitioner has prayed for, grant of pre-arrest-anticipatory bail, so as to save him from unwarranted allegations being levelled against him. 3. Upon listing of this petition [Cr.MP (M) No.190 of 2024], this Court notice to the respondent, on 12.02.2024 and directed the State Authorities to file reply/ status report. However, the interim protection, by way of pre-arrest bail, was accorded to the bail petitioner. 3. Upon listing of this petition [Cr.MP (M) No.190 of 2024], this Court notice to the respondent, on 12.02.2024 and directed the State Authorities to file reply/ status report. However, the interim protection, by way of pre-arrest bail, was accorded to the bail petitioner. The matter was then listed on 28.02.2024, when the status report was filed by the State Authorities. The matter was then listed on 11.03.2024 when, the fresh status report was filed by the State Authorities/Investigating Agencies. 3(i). As a sequel to the issuance of notice, as perusal of the Status Report reveals that the case of the prosecution is that the prosecutrix and the bail petitioner knew each other for the last sixteen years. Both the prosecutrix and the bail petitioner had talking terms since 2019. It is also clear from the status report that the prosecutrix and the bail petitioner had treated each other as husband and wife. In this background, it is borne out from the status report that both the prosecutrix and the bail petitioner had remained together at various places and on various occasions at Udhampur, Jammu, Pathankot, Chamunda and Nagrota Bagwan since 2019 till the year 2022, on various occasions. 3(ii). It is further stated in the status report that relations between the prosecutrix and the bail petitioner became sour about 3-4 months ago; a friend of the bail petitioner’s called up the prosecutrix and narrated different story that the bail petitioner had other girlfriends also. The status report reveals that on 27.01.2024, the prosecutrix was taken for medical examination in Zonal Hospital, Dharamshala, but after disclosing the entire incident, she failed to undergo the medical before the Medical Officer concerned. The status report further reveals that on 27.01.2024, the prosecutrix was taken for recording her statement under Section 164 of the Code of Criminal Procedure before the Learned Chief Judicial Magistrate, Dharamshala, wherein, the prosecutrix has admitted that she and the bail petitioner had consensual sexual relations with each other at different places and different occasions, as mentioned above. 3(iii). The status report further reveals that with the intervention of Gram Panchayat, Tikka Bani [Yol, Dharamshal], the matter was amicably resolved between the parties on 25.12.2023. The status report further reveals that the husband of the prosecutrix had also registered an FIR against the bail petitioner, in which the matter was separately compromised on 14.01.2024. 3(iv). 3(iii). The status report further reveals that with the intervention of Gram Panchayat, Tikka Bani [Yol, Dharamshal], the matter was amicably resolved between the parties on 25.12.2023. The status report further reveals that the husband of the prosecutrix had also registered an FIR against the bail petitioner, in which the matter was separately compromised on 14.01.2024. 3(iv). The status report further reveals that after grant of interim protection by this Court, in terms of the orders dated 12.02.2024, the bail petitioner, Ashok Kumar, has joined the investigation and has cooperated with the Investigating Agencies. The status report further reveals that the investigation has been completed and the challan has been presented before the Learned Chief Judicial Magistrate, on 07.03.2024. In this background, the State Authorities-Police have filed the status report. 4. Heard Mr. B.S. Chauhan, Senior Advocate assisted by Mr. Ram Kumar Advocate for the petitioner and Ms. Ayushi Negi, learned Deputy Advocate General, for the Respondent-State. 5. In this background, the State Authorities-Police have filed the status report. 4. Heard Mr. B.S. Chauhan, Senior Advocate assisted by Mr. Ram Kumar Advocate for the petitioner and Ms. Ayushi Negi, learned Deputy Advocate General, for the Respondent-State. 5. Before dealing with the present application, it is relevant to take note of the provisions of Section 438 Cr.P.C. and Sections 375, 376, 451, 504 and 506 of the Indian Penal Code, which read as under:- “Section 438 Cr.P.C.: Direction for grant of bail to person apprehending arrest: (1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely— (i) the nature and gravity of the accusation; (ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) the possibility of the applicant to flee from justice; and (iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail; Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application. (1A) Where the Court grants an interim order under Sub-Section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court. (1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice. (2) When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including— (i) a condition that the person shall make himself available for interrogation by a police officer as and when required; (ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (iii) a condition that the person shall not leave India without the previous permission of the Court; (iv) such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that section. (3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1). (4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code.” Section 375 IPC: 375. (4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code.” Section 375 IPC: 375. Rape.—A man is said to commit “rape” if he— (a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes her to do so with him or any other person; or (b) inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the urethra or anus of a woman or makes her to do so with him or any other person; or (c) manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra, anus or any part of body of such woman or makes her to do so with him or any other person; or (d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any other person, under the circumstances falling under any of the following seven descriptions:— First. Against her will. Secondly. Without her consent. Thirdly With her consent, when her consent has been obtained by putting her or any person in whom she is interested, in fear of death or of hurt. Fourthly. With her consent, when the man knows that he is not her husband and that her consent is given because she believes that he is another man to whom she is or believes herself to be lawfully married. Fifthly. With her consent when, at the time of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him personally or through another of any stupefying or unwholesome substance, she is unable to understand the nature and consequences of that to which she gives consent. Sixthly. With or without her consent, when she is under eighteen years of age. Seventhly. When she is unable to communicate consent. Explanation 1. For the purposes of this section, “vagina” shall also include labia majora. Explanation 2. Sixthly. With or without her consent, when she is under eighteen years of age. Seventhly. When she is unable to communicate consent. Explanation 1. For the purposes of this section, “vagina” shall also include labia majora. Explanation 2. Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception 1. A medical procedure or intervention shall not constitute rape. Exception 2. Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape. 376. Punishment for rape.— (1) Whoever, except in the cases provided for in sub-section (2) commits rape, shall be punished with rigorous imprisonment of either description for a term which [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine]. 376. Punishment for rape.— (1) Whoever, except in the cases provided for in sub-section (2) commits rape, shall be punished with rigorous imprisonment of either description for a term which [shall not be less than ten years, but which may extend to imprisonment for life, and shall also be liable to fine]. (2) Whoever,— (a) being a police officer, commits rape— (i) within the limits of the police station to which such police officer is appointed; or (ii) in the premises of any station house; or (iii) on a woman in such police officer's custody or in the custody of a police officer subordinate to such police officer; or (b) being a public servant, commits rape on a woman in such public servant's custody or in the custody of a public servant subordinate to such public servant; or (c) being a member of the armed forces deployed in an area by the Central or a State Government commits rape in such area; or (d) being on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women's or children's institution, commits rape on any inmate of such jail, remand home place or institution; or (e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or (f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or (g) commits rape during communal or sectarian violence; or (h) commits rape on a woman knowing her to be pregnant; (j) commits rape, on a woman incapable of giving consent; or (k) being in a position of control or dominance over a woman, commits rape on such woman; or (l) commits rape on a woman suffering from mental or physical disability; or (m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or (n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which \shall mean imprisonment for the remainder of that person's natural life, \and shall also be liable to fine. Explanation.— For the purposes of this sub-section, (a) “armed forces” means the naval, military and air forces and includes any member of the Armed Forces constituted under any law for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government or the State Government; (b) “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation; (c) “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861 (5 of 1861); (d) “women's or children's institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow's home or an institution called by any other name, which is established and maintained for the reception and care of women or children. [(3) Whoever, commits rape on a woman under sixteen years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this sub-section shall be paid to the victim.] Section 451 IPC: 451. House-trespass in order to commit offence punishable with imprisonment.— Whoever commits house-trespass in order to the committing of any offence punishable with imprisonment, shall be punished with imprisonment of either description for a term which may extend to two years, and shall also be liable to fine; and if the offence intended to be committed is theft, the term of the imprisonment may be extended to seven years. Section 504 IPC: 504. Intentional insult with intent to provoke breach of the peace.—Whoever intentionally insults, and thereby gives provocation to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section 506 IPC: 506. Section 506 IPC: 506. Punishment for criminal intimidation.—Whoever commits the offence of criminal intimidation shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both; If threat be to cause death or grievous hurt, etc.—and if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or 8 [imprisonment for life], or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.” 6. In the background of the statutory provisions of Section 438 Cr.P.C., the claim of a suspect-accused is to be examined within the parameters prescribed in the Code of Criminal Procedure and also the broad parameters mandated by the Hon’ble Supreme Court, regulating bail anticipatory bail (under Section 438) in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565 , Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598 ; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004)7 SCC 528 ; Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496 ; reiterated in P Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24 , mandating that the anticipatory bail is to be granted as an exception where the case alleged is frivolous or groundless and in case the prima facie or reasonable grounds lead to believe or point towards accusation then, the refusal of anticipatory bail does not amounts to denial of Article 21 of the Constitution of India ; Sushila Aggarwal versus State -NCT Delhi, (2020) 5 SCC 01 ; CBI versus Santosh Karnani (2023) 6 SCALE 250 ; which have beenreiterated by the Hon’ble Supreme Court in the case of State of Haryana versus Dharamraj, 2023 SCC OnLine SC 1085, which read as under: (i) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) Character, behaviour, means, position and standing of the accused; (vi) Likelihood of the offence being repeated; (vii) Reasonable apprehension of the witnesses being influenced and (viii). Danger, of course, of justice being thwarted by grant of bail. 7. In normal parlance, the principle of law is that bail is a rule and jail is an exception. However, this Court is conscious of the fact that the power under Section 438 is an extraordinary power and the same has to be exercised sparingly and the privilege of pre- arrest bail is to be to be granted in exceptional cases. It is trite law that anticipatory bail is not be granted as a rule and cannot be claimed as of right. It is trite law that anticipatory bail is not be granted as a rule and cannot be claimed as of right. It is trite law that while considering the prayer for bail {pre-arrest bail or regular bail], factum of prolonged pre-conviction incarceration is also to be taken into account. While considering the prayer for bail, the balance has to be carved out between the liberty of an accused vis-à-vis the societal interest, including the danger of the justice being thwarted in case the bail is granted. 8. Anticipatory bail is to be granted, only if, exceptional circumstances exist and the denial of pre-arrest would amount to denial of Article 21 of the Constitution of India. The claim for anticipatory bail may carry weight, in case, the accusation is frivolous and groundless with the object of either injuring or humiliating or where a person has falsely been roped in the crime. Even such a claim is to be tested in the background of the self-imposed restrains or the broad parameters mandated by law, as referred to hereinabove). On the other hand, anticipatory bail is not to be granted as of right, when, there is a prima facie case or reasonable grounds exist pointing out towards accusation. 9. This Court is also conscious of the fact that as per the mandate of law, in Criminal Appeal No.3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, the Court is not required to weigh the evidence collected by the Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of punishment prescribed for alleged offences, the character of the accused, the circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused during trial, reasonable apprehension of the witnesses being tampered with, the large interests of the Public/State. In this background, while testing the claim for bail, the Court is required to form a prima-facie opinion in the context of the broad-parameters referred to above, without delving into the evidence on merits, as it may tend to prejudice the rights of the accused as well as the prosecution. 10. In this background, while testing the claim for bail, the Court is required to form a prima-facie opinion in the context of the broad-parameters referred to above, without delving into the evidence on merits, as it may tend to prejudice the rights of the accused as well as the prosecution. 10. On considering the entirety of facts and circumstances and keeping in view the mandate of law laid down by the Hon’ble Supreme Court, as referred to above, this Court is of the considered view, that the interim/pre-arrest bail granted by this Court on 12.02.2024, deserves to be made absolute, for the following reasons: - 10(i). Prima facie, the accusation under Sections 375, 376 and 451 of the Indian Penal Code is not made out against the bail petitioner-accused [Ashok Kumar], on the facts and circumstances, as referred to above. Even there are no reasonable grounds, to conclude prima facie that the accusation is made out against the bail petitioner. 10(ii). The statement made by the prosecutrix under Section 164 Cr.P.C. before the Learned Chief Judicial Magistrate, Dharamshala, negates the invocation of Sections 375 and 376 of the Indian Penal Code, for the reason, that the prosecutrix, who is a married woman with three minor children, has herself admitted that she had consensually been staying with the bail petitioner, since the year 2019 till 2022 and thereafter on various occasions at different places i.e. at Udhampur, Jammu, Pathankot, Chamunda and Nagrota Bagwan. 10(iii). The act of living together and sexual relations between the prosecutrix and the bail petitioner, since 2019 to 2022, as referred to above, which was without any objection at that relevant time [till the objection was made 3-4 months ago, which are levelled just to seek ulterior benefits], gives rise to irrebutable presumption, at this stage, that the relations between them were consensual and, therefore, the alleged offence-accusation under Sections 375 and 376 of the Indian Penal Code, is prima facie, is not made out against the bail petitioner. By no stretch of imagination, this Court, at this stage, can believe that a married woman having three minor children, who knows that consequential effects of being roped, by a person, will lead to humiliation, insult and societal adversarial implications. The bail petitioner has denied the factum of having married with the complainant-prosecutrix, which is baseless. 10(iv). By no stretch of imagination, this Court, at this stage, can believe that a married woman having three minor children, who knows that consequential effects of being roped, by a person, will lead to humiliation, insult and societal adversarial implications. The bail petitioner has denied the factum of having married with the complainant-prosecutrix, which is baseless. 10(iv). The status report reveals that on 27.01.2024, the prosecutrix had gone for medical examination in Zonal Hospital, Dharamshala, had narrated the incident to the Medical Officer, but at the time when she was made to undergo medical examination, the prosecutrix failed to undergo medical examination. This, in itself belies the case of the prosecutrix and the prosecution, at this stage. The status report reveals that the prosecutrix and the bail petitioner had compromised the matter with the intervention of Gram Panchayat, on 25.12.2023 and since then, no such incident has been alleged or reported against the bail petitioner. Even the husband of the prosecutrix had registered separate FIR in Police Station, Panchrukhi, against the bail petitioner, in which the matter was compromised on 14.01.2024 and since then no physical meeting or relations exist between the bail petitioner and the prosecutrix. The claim for anticipatory bail, needs to be extended to the bail petitioner, as there is no prima facie case or no reasonable grounds against the bail petitioner as is borne out from the discussion made hereinabove. 10(v). Once there is no likelihood of the petitioner fleeing from the investigation or trial, being the disciplined soldier in the Armed Forces then, the benefit of anticipatory bail needs to be accorded. 10(vi). The bail petitioner is entitled to the benefit of anticipatory bail, in view of the fact that investigation has been completed, in which the bail petitioner has duly participated and now, the challan/police report has been presented before the Learned Chief Judicial Magistrate, Dharamshala, on 07.03.2024. 10(vii). The status report does not spell out any other best adversarial circumstances against the bail petitioner, except the accusations in the present FIR. The status report also does not spell out any eventuality that in case of grant of bail, the justice would be throttled by the bail petitioner. 10(viii). 10(vii). The status report does not spell out any other best adversarial circumstances against the bail petitioner, except the accusations in the present FIR. The status report also does not spell out any eventuality that in case of grant of bail, the justice would be throttled by the bail petitioner. 10(viii). Even so far as the other accusation under Sections 504 and 506 of the Indian Penal Code are concerned, which are trivial in nature, cannot be made the basis for curtailing the liberty of the bail petitioner, at this stage. 10(ix). Moreover, the pre-trial punishment is prohibited under the law. The trial of the accused will take sufficient long time and no useful purpose would be served by keeping him in judicial custody, when, in prima facie opinion of this Court, no prima facie case or reasonable grounds exist against the bail petitioner. 10(x). So far as the apprehensions, as expressed, in the status report, are concerned, those are not sufficient to decline the relief to the petitioner, for which, he is, otherwise, entitled to. For those apprehensions, reasonable conditions can be imposed. 10(xi). Even the status Report does not point out anything adverse regarding past conduct blemished criminal history/ records of the bail petitioner. 10(xii). Status report filed by the State Authorities/ police does not spell out any need for the custodial interrogation of the bail petitioner. 10(xiii). The status report reveals that in compliance to the orders dated 12.02.2024 passed by this Court, the bail petitioner has joined the investigation and he is participating/cooperating in the investigation with the Police Authorities. 10(xiv). The status report further reveals that the investigation has been completed and the challan has been presented before the Learned Chief Judicial Magistrate, on 07.03.2024. 10(xv). Even the allegation of the complainant regarding the factum of marriage with the bail petitioner-accused is not made out in the status report and the same is also denied by the bail petitioner-accused herein. 11. In view of the above discussion, the bail petition is allowed and the orders dated 12.02.2024 passed by this Court, granting pre-arrest to the bail petitioner is made absolute; subject to the observations of conditions contained in the order dated 12.12.2024, coupled with the fact that the bail petitioner shall participate in the investigation and the trial, without fail. 12. In view of the above discussion, the bail petition is allowed and the orders dated 12.02.2024 passed by this Court, granting pre-arrest to the bail petitioner is made absolute; subject to the observations of conditions contained in the order dated 12.12.2024, coupled with the fact that the bail petitioner shall participate in the investigation and the trial, without fail. 12. Petitioner is permitted to produce/use copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy, but if required, may verify passing of order from Website of the High Court. 13. Any observations made herein-above, shall not be construed in any manner as an expression of opinion on the merits of the case and these observations are made only, for the disposal of the instant bail application. 14. As aforesaid, the instant petition and all applications, if any, shall stand disposed of.