Gulshan @ Kaka vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking regular bail in F.I.R. No. 60 of 2024, dated 17.08.2024, registered in Police Station Haripur, District Kangra, H.P., for the commission of offences punishable under Sections 331(4) and 305 read with Section 3(5) of the Bharatiya Nyaya Sahinta (BNS) 2023.

It has been asserted that, as per the prosecution, the victim Daler Singh is running a goldsmith shop under the name and style of Pitamber Jewellers at Bankhandi Bazaar. He had closed his shop on the intervening night of 16/17.08.2024 at about 8:00 PM. He received a telephonic call at about 1:10 AM that the shutter of his shop was broken. He went to the spot and found that the shutter had been lifted and the ornaments were missing. He checked the CCTV footage and found that two people had arrived on the spot in a vehicle at about 12:30 AM and broke the shutter with an iron crowbar. The police registered the FIR and investigated the matter. The police arrested the petitioner. The petitioner has been in custody since 31.10.2025. The petitioner is a permanent resident of Ferozepur, and there is no chance of his absconding. He would abide by all the terms and conditions that the Court may impose upon him. Hence, it is prayed that the present petition be allowed and the petitioner be released on bail.

The petition is opposed by filing a status report, asserting that the victim is running a jewellery shop under the name and style of Pitamber Jewellers at Bankhandi Bazaar. He had locked his shop on 16/17.08.2024 at about 8:00 PM. He was informed by Mr Nitin Minhas at 1:10 AM that the shutter of his (informant’s) shop appeared to be broken. The informant and his son went to Bankhandi and found that the shutter had been opened. He checked the shop and found that the jewellery and gold scrap were missing. He checked the CCTV footage and found that a vehicle was parked outside his shop, and twounknown people got out of the vehicle and committed theft. The police registered the FIR and checked the CCTV footage. The registration number of the vehicle was found to be PB05AN- 8052. It was found to be owned by Kuldeep Kumar. One challan was issued in the name of Harbhajan. The police seized the vehicle and recovered various articles. Kuldeep Kumar revealed that he had sold the vehicle to Smt. Rekha. He also said that Gulshan, Gagan, and Lalu had gone to Himachal. He identified the person in the CCTV footage as Gagan, Lalu and Salman. The police checked the call detail records of Harbhajan, Aditya, Lalu, Gagan and Gulshan and found that the location of Lalu, Gagan and Gulshan was in Himachal Pradesh on 16.08.2024. They had switched off their mobiles at 8:00 PM. The police arrested Aditya @ Rahul and recovered a stolen mobile phones from him. He also identified the place of theft. The police arrested Gagan and recovered the mobile phone from him. The police also arrested Salman @ Salim. They identified the place of theft. Salman revealed that Gulshan @ Kaka had sold the stolen property and paid ₹10,000/-to him. He produced ₹ 10,000/- received by him, which was seized by the police. The police arrested Lalu, who also identified the place of theft. He also produced ₹ 10,000/-, which was paid to him by Gulshan @ Kaka. Police arrested Gulshan @ Kaka. He also produced ₹ 10,000/-. The FIR was registered against the petitioner earlier. The charge sheet was filed before the Court on 15.12.2025, and the matter is listed for consideration of the charge on 9.03.2026.

I have heard Mr Sanjeev Kumar Suri, learned counsel for the petitioner and Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State.

Mr Sanjeev Kujmar Suri, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. There is no material against the petitioner to connect him to the commission of the crime. The police have filed the chargesheet before the learned Trial Court, and no fruitful purpose would be served by detaining the petitioner in custody. The petitioner would abide by the terms and conditions that the Court may impose. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the petitioner was involved in the commission of similar offences in the past. He would indulge in the commission of a similar offence in case of his release on bail. Therefore, he prayed that the present petition be dismissed.

I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

The parameters for granting bail were considered by the Hon’ble Supreme Court in Pinki v. State of U.P., (2025) 7 SCC 314: 2025 SCC OnLine SC 781, wherein it was observed at page 380:-

(i) Broad principles for the grant of bail

In Gudikanti Narasimhulu v. High Court of A.P., (1978) 1 SCC 240: 1978 SCC (Cri) 115, Krishna Iyer, J., while elaborating on the content of Article 21 of the Constitution of India in the context of personal liberty of a person under trial, has laid down the key factors that should be considered while granting bail, which are extracted as under: (SCC p. 244, paras 7-9)

“7. It is thus obvious that the nature of the charge is the vital factor, and the nature of the evidence is also pertinent. The punishment to which the party may be liable, if convicted or a conviction is confirmed, also bears upon the issue.

Another relevant factor is whether the course of justice would be thwarted by him who seeks the benignant jurisdiction of the Court to be freed for the time being. [Patrick Devlin, “The Criminal Prosecution in England” (Oxford University Press, London 1960) p. 75 — Modern Law Review, Vol. 81, Jan. 1968, p. 54.]

Thus, the legal principles and practice validate the Court considering the likelihood of the applicant interfering with witnesses for the prosecution or otherwise polluting the process of justice. It is not only traditional but rational, in this context, to enquire into the antecedents of a man who is applying for bail to find whether he has a bad record, particularly a record which suggests that he is likely to commit serious offences while on bail. In regard to habituals, it is part of criminological history that a thoughtless bail order has enabled the bailee to exploit the opportunity to inflict further crimes on the members of society. Bail discretion, on the basis of evidence about the criminal record of a defendant, is therefore not an exercise in irrelevance.” (emphasis supplied)

In Prahlad Singh Bhati v. State (NCT of Delhi), (2001) 4 SCC 280: 2001 SCC (Cri) 674, this Court highlighted various aspects that the courts should keep in mind while dealing with an application seeking bail. The same may be extracted as follows: (SCC pp. 284-85, para 8)

“8. The jurisdiction to grant bail has to be exercised on the basis of well-settled principles, having regard to the circumstances of each case and not in an arbitrary manner. While granting the bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character, behaviour, means and standing 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 or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the 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 it (sic 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.” (emphasis supplied)

This Court in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598: 2002 SCC (Cri) 688, speaking through Banerjee, J., emphasised that a court exercising discretion in matters of bail has to undertake the same judiciously. In highlighting that bail should not be granted as a matter of course, bereft of cogent reasoning, this Court observed as follows: (SCC p. 602, para 3)

“3. Grant of bail, though being a discretionary order, but, however, calls for the exercise of such a discretion in a judicious manner and not as a matter of course. An order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts do always vary from case to case. While the placement of the accused in society, though it may be considered by itself, cannot be a guiding factor in the matter of grant of bail, the same should always be coupled with other circumstances warranting the grant of bail. The nature of the offence is one of the basic considerations for the grant of bail — the more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.” (emphasis supplied)

In Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528: 2004 SCC (Cri) 1977, this Court held that although it is established that a court considering a bail application cannot undertake a detailed examination of evidence and an elaborate discussion on the merits of the case, yet the court is required to indicate the prima facie reasons justifying the grant of bail.

In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496: (2011) 3 SCC (Cri) 765, this Court observed that where a High Court has granted bail mechanically, the said order would suffer from the vice of non-application of mind, rendering it illegal. This Court held as under with regard to the circumstances under which an order granting bail may be set aside. In doing so, the factors which ought to have guided the Court's decision to grant bail have also been detailed as under: (SCC p. 499, para 9)

“9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(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.” (emphasis supplied)

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One of the judgments of this Court on the aspect of application of mind and requirement of judicious exercise of discretion in arriving at an order granting bail to the accused is Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170, wherein a three-Judge Bench of this Court, while setting aside an unreasoned and casual order (Pappu Kumar v. State of Bihar, 2021 SCC OnLine Pat 2856 and Pappu Singh v. State of Bihar, 2021 SCC OnLine Pat 2857) of the High Court granting bail to the accused, observed as follows: (Brijmani Devi v. Pappu Kumar, (2022) 4 SCC 497 : (2022) 2 SCC (Cri) 170]), SCC p. 511, para 35)

“35. While we are conscious of the fact that liberty of an individual is an invaluable right, at the same time while considering an application for bail courts cannot lose sight of the serious nature of the accusations against an accused and the facts that have a bearing in the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a court to arrive at a prima facie conclusion. While considering an application for the grant of bail, a prima facie conclusion must be supported by reasons and must be arrived at after having regard to the vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, the criminal antecedents of the accused, if any, and the nature of punishment that would follow a conviction vis-à-vis the offence(s) alleged against an accused.” (emphasis supplied)

The status report mentions that the petitioner’s father revealed that Gulshan @ Kaka, Gagan and Lalu had gone to Himachal in a vehicle. The vehicle was seen outside the shop. He also identified Gagan, Lalu and Salman. The location of the petitioner was found in Himachal Pradesh on 16.08.2024. The police recovered ₹ 10,000/- each from the petitioner and the co- accused. The police also recovered the stolen mobile phone from Rahul. The circumstances prima facie show the petitioner’s involvement in the commission of the crime.

The status report mentions that the petitioner has criminal antecedents. The six FIRs have been registered against the petitioner, out of which four pertain to theft. This Court dealt with the relevance of criminal antecedents while granting bail in Champa vs. State of H.P.: 2025:HHC:28899 and held that the criminal antecedents would disentitle an accused from the concession of bail, especially when an FIR was registered against the accused related to the commission of a similar offence. This judgment was unsuccessfully assailed before the Hon’ble Supreme Court in SLP(Criminal) 19120 of 2025 titled Champa Devi vs State of H.P., decided on 27.11.2025. Therefore, the relevance of criminal antecedents cannot be ignored.

In the present case, the petitioner was involved in the commission of similar offences earlier; therefore, the apprehension of the prosecution that the petitioner would indulge in similar offences if released on bail has some substance, and the petitioner cannot be released on bail based on parity.

It was submitted that the co-accused has been released on bail, and the petitioner is entitled to bail on the principle of parity. This submission cannot be accepted. It was laid down by the Hon’ble Supreme Court in Sagar v. State of U.P., 2025 SCC OnLine SC 2584, that a person cannot be released on bail after applying the principle of parity without examining his position vis-à-vis other accused. It was observed:

“14. What flows from the above judgments, which have been referred to, only to the limited extent indicated above, is that the High Courts speak in one voice that parity is not the sole ground on which bail can be granted. That, undoubtedly, is the correct position in law. The word ‘parity’ is defined by the Cambridge Dictionary as “equality, especially of pay or position.” When weighing an application on parity, it is the ‘position’ that is the clincher. The requirement of ‘position’ is not met only by involvement in the same offence. Position means what the person whose application is being weighed, his position in crime, i.e., his role, etc. There can be different roles played - someone part of a large group, intending to intimidate; an instigator of violence; someone who throws hands at the other side, instigated by such words spoken by another, someone who fired a weapon or swung a machete - parity of these people will be with those who have performed similar acts, and not with someone who was part of the group to intimidate the other by the sheer size of the gathering, with another who attempted to hack away at the opposer's limbs with a weapon.”

In the present case, the petitioner has criminal antecedents. It is not shown that any FIR was registered against the co-accused. Therefore, the principle of parity does not apply to the present case.

No other point was urged.

In view of the above, the petitioner is not entitled to bail. Hence, the present petition fails, and it is dismissed.

The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.