Taking Photos Of Woman Does Not Always Amount To Stalking: HP HC

 It is entirely in the fitness of things that the Himachal Pradesh High Court at Shimla in a most learned, laudable, landmark, logical and latest judgment titled Krishan Kumar Kasana vs State of Himachal Pradesh & another in Cr. MP (M) No. 1257 of 2025 and cited in Neutral Citation No.: 2025:HHC:26503 that was reserved on 01.08.2025 and then finally pronounced on 06.08.2025 granted anticipatory bail to a businessman who was booked in a stalking case holding that taking photos of woman does not always amount to stalking. It must be noted here that the Single Judge Bench comprising of Hon’ble Mr Justice Rakesh Kainthla had passed this decisive judgment after noting that even if the allegations are true, the offence of stalking does not appear to be made out against the accused. Very rightly so!

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Rakesh Kainthla of the Himachal Pradesh High Court at Shimla sets the ball in motion by first and foremost putting forth in para 1 that, “The petitioner has filed the present petition for seeking pre-arrest bail in FIR No. 107 of 2025 dated 23.04.2025, registered at Police Station Baddi, District Solan, H.P., for the commission of offences punishable under Sections 221,224, 351(2) and 78 of Bharatiya Nyaya Sanhita (BNS), 2023.”

To put things in perspective, the Bench envisages in para 2 while elaborating on the facts of the case stating that, “It has been asserted that the petitioner is a law-abiding citizen. He was telephonically called by the Station House Officer of Baddi Police Station and was told about a complaint dated 23.04.2025 registered against him at the instance of the informant. He enquired about the complaint and found that an F.I.R. No. 107 of 2025, dated 23.04.2025, was registered against him. The allegations in the F.I.R. are false. The petitioner had made complaints against the informant regarding the demand for a bribe from various persons, and the informant filed the F.I.R. against the petitioner as a counterblast to the complaints made by the petitioner against him. The petitioner would cooperate with the investigation and abide by all the terms and conditions which the Court may impose. Hence, the present petition.”

While citing relevant case law, the Bench observes in para 11 that, “It was laid down by the Hon’ble Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24: (2019) 3 SCC (Cri) 509: 2019 SCC OnLine SC 1143 that the power of pre-arrest bail is extraordinary and should be exercised sparingly. It was observed:

“69. 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 judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors are considered to decide whether it is a fit case for the grant of anticipatory bail. Grant of anticipatory bail to some extent interferes with the sphere of investigation of an offence, and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule, and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.””                                                                                                             

While citing yet another recent and relevant case law, the Bench reiterates in para 12 that, “This position was reiterated in Srikant Upadhyay v. State of Bihar, 2024 SCC OnLine SC 282, wherein it was held:

“25. We have already held that the power to grant anticipatory bail is extraordinary. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of the imagination, be said that anticipatory bail is the rule. It cannot be the rule, and the question of its grant should be left to the cautious and judicious discretion of the Court, depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious, as the grant of interim protection or protection to the accused in serious cases may lead to a miscarriage of justice and may hamper the investigation to a great extent, as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest, and we say that such orders shall be passed in eminently fit cases.””

Do note, the Bench notes in para 13 that, “It was held in Pratibha Manchanda v. State of Haryana, (2023) 8 SCC 181: 2023 SCC OnLine SC 785 that the Courts should balance individual rights, public interest and fair investigation while considering an application for pre-arrest bail. It was observed:

“21. 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 tightrope we must walk lies in striking a balance between safeguarding individual rights and protecting public interest. While the right to liberty and presumption of innocence are vital, the court must also consider the gravity of the offence, the impact on society, and the need for a fair and free investigation. The court’s discretion in weighing these interests in the facts and circumstances of each case becomes crucial to ensure a just outcome.””

Be it noted, the Bench notes in para 14 that, “It was held in Devinder Kumar Bansal v. State of Punjab, (2025) 4 SCC 493: 2025 SCC OnLine SC 488 that pre-arrest bail can be granted in exceptional circumstances where the Court is of the view that the petitioner was falsely implicated in the case, and the presumption of innocence cannot be a reason to grant bail. It was observed at page 501:

“21. The parameters for the grant of anticipatory bail in a serious offence like corruption are required to be satisfied. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has been falsely implicated in the crime or the allegations are politically motivated or frivolous. So far as the case at hand is concerned, it cannot be said that any exceptional circumstances have been made out by the petitioner-accused for the grant of anticipatory bail, and there is no frivolity in the prosecution.

22. In the aforesaid context, we may refer to a pronouncement in CBI v. V. Vijay Sai Reddy [CBI v. V. Vijay Sai Reddy, (2013) 7 SCC 452: (2013) 3 SCC (Cri) 563], wherein this Court expressed thus: (SCC p. 465, para 34)

“34. While granting bail, the court has to keep in mind the nature of accusation, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character 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/State and other similar considerations. It has also to be kept in mind that for the purpose of granting 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 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. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond a reasonable doubt.” (emphasis in original and supplied)

23. The presumption of innocence, by itself, cannot be the sole consideration for the grant of anticipatory bail. The presumption of innocence is one of the considerations which the court should keep in mind while considering the plea for anticipatory bail. The salutary rule is to balance the cause of the accused and the cause of public justice. Over solicitous homage to the accused’s liberty can, sometimes, defeat the cause of public justice.”

Most significantly, the Bench encapsulates in para 17 what constitutes the cornerstone of this notable judgment postulating precisely that, “In the present case, the allegations in the complaint do not show that the petitioner had followed the informant’s wife and contacted her to foster personal interaction. The only allegation is that the petitioner had taken the photographs of the informant’s wife. Prima facie, these allegations do not satisfy the definition of stalking.”

It is worth noting that the Bench notes in para 18 that, “The status report shows that the informant was found at SAS Nagar, Mohali, whereas the location of the petitioner was found at Sheetla Mata Shisma New Gurudwara Kharad and SAS Nagar, Punjab on 07.10.2025 (Sic). As per the complaint, the informant was going to Shimla, and the petitioner had tried to hit his vehicle at a desolate place on 07.10.2024. Thus, the call detail record does not corroborate the allegations made in the FIR.”

It would be instructive to note that the Bench then hastens to add in para 19 noting that, “Perusal of the status report shows that the petitioner had joined the investigation. The status report does not show that the custodial interrogation of the petitioner is required. Therefore, no fruitful purpose would be served by detaining the petitioner in custody.”    

As a corollary, the Bench then mandates in para 20 holding that, “In view of the above, the present petition is allowed and the order dated 29.05.2025 passed by this Court is made absolute.”
Finally and for sake of clarity, the Bench then concludes by clarifying in para 21 stating that, “The observations made heretofore shall remain confined to the disposal of the petition and will have no bearing, whatsoever on the merits of the case.”                                                      

In a nutshell, we thus see that the Single Judge Bench comprising of Hon’ble Mr Justice Rakesh Kainthla of the Himachal Pradesh High Court at Shimla has made it indubitably clear in this robust judgment that taking photos of woman does not always amount to stalking. It was made abundantly clear by the Shimla High Court that Section 78 of the Bharatiya Nyaya Sanhita, BNS deals with stalking by punishing any person who follows a woman and contacts such woman to foster personal interaction repeatedly despite a clear indication of disinterest, or monitors the woman’s use of the internet, email, etc. It was pointed out by the Court that no such allegations was made in the present case and there was no need for custodial interrogation in this case. So the plea for anticipatory bail was allowed by the Shimla High Court in this leading case. Very rightly so!