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2025 DIGILAW 330 (HP)

Madhu Bala v. State of Himachal Pradesh

2025-03-10

RAKESH KAINTHLA

body2025
JUDGMENT : Rakesh Kainthla, J. 1. The petitioners have filed the present petitions for seeking their pre-arrest bail. It has been asserted that F.I.R. No. 6 of 2025, dated 06.01.2025 was registered against the petitioners for committing offences punishable under Sections 420, 406 and 506 of Indian Penal Code (IPC) at Police Station Rampur Bushehar, District Shimla, H.P. The petitioners had filed bail petitions before learned Sessions Judge, Rampur Bushehar, which were dismissed on 20.01.2025 on the ground that the petitioners joined the investigation only on 19.01.2025. No notice was issued to the petitioners. The petitioners contacted the Investigation Officer, who asked them to join the investigation on 14.01.2025 but changed the date to 15.01.2025. The petitioners approached the Investigating Officer on 15.01.2025, who told them to visit the police station on the next day, as he was transferred to Police Station Dhalli, Shimla. The petitioners joined the investigation on 19.01.2025 and answered all the questions asked by the Investigating Officer. The petitioners were falsely implicated, and they had nothing to do with the commission of the crime. The dispute between the parties relates to the payment of money, which is a civil dispute. The petitioners would abide by all the terms and conditions, which the Court may impose; hence, the petition. 2. The petition is opposed by filing a status report asserting that the informant/victim made a complaint to the police stating that the petitioners are running a business in the name and style of One Touch Trading Solution Company. They used to collect money from different people by assuring them to give a handsome return of 15% on the invested money. The people invested various amounts with the petitioners. The petitioners failed to pay the assured return and even to return the money. The victims had borrowed the money from various sources to get a higher return, and they were unable to return the borrowed money. Petitioner-Roop Ram Shukla purchased four bighas of land at Narkanda, one plot at Uttrakhand and one kothi at Zirakpur with the money collected from people. The petitioners threatened the victims when they sought the return of their invested money. The police registered the FIR and conducted the investigation. The police found that various amounts were transferred to the petitioners’ accounts by RTGS, UPI and cash. The petitioners threatened the victims when they sought the return of their invested money. The police registered the FIR and conducted the investigation. The police found that various amounts were transferred to the petitioners’ accounts by RTGS, UPI and cash. The petitioners had failed to pay the return as promised by them and even to return the money. The transfer of the money was established by the record taken from the Bank. The petitioners obtained pre-arrest bail from learned Sessions Judge Rampur Bushehar. Petitioner Madhu Bala joined the investigations on 16.01.2025 and 17.01.2025, and the petitioner, Roop Ram Shukla, joined the investigation only on 19.01.2025. The investigation is continuing, and it has been found that One Touch Trading Solution is not a company but a firm. The petitioners had initially returned the money taken by them with interest to assure the people about their intentions. The bank accounts of the petitioners show a huge transfer of money. The police are to ascertain the money taken by the petitioners and the investments made by them. The petitioners would abscond in case of their release on bail. The people have resentment against the petitioners, and they can take recourse to demonstrations, which would hamper the public order. The petitioners are not cooperating with the police, and their custodial interrogation is necessary; hence, the status report. 3. I have heard Mr. Mukesh Sharma, learned counsel for the petitioners and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State. 4. Mr. Mukesh Sharma, learned counsel for the petitioners submitted that the petitioners are innocent and they were falsely implicated. Informants Kuldeep Azad and Naresh Kumar are members of Shri Venketeshwara Trading Academy Private Limited with the petitioner Roop Lal Shukla. They joined the other informants to compel the petitioners to settle the accounts with them. The bail proceedings cannot be used for recovery of the amount. The petitioners would join the investigation as and when directed to do so and abide by all the terms and conditions, which the Court may impose; hence, he prayed that the present petitions be allowed and the petitioners be released on bail. He relied upon the judgment of this Court in Cr. MP (M) No. 2226 of 2022 titled Geeta Kashyap vs. State of H.P. decided on 01.12.2023 in support of his submission. 5. Mr. He relied upon the judgment of this Court in Cr. MP (M) No. 2226 of 2022 titled Geeta Kashyap vs. State of H.P. decided on 01.12.2023 in support of his submission. 5. Mr. Lokender Kutlehria, learned Additional Advocate General, submitted that the petitioners had taken the money from various people after assuring them of a high return. They initially paid the money to the investors with the promised returns to win the people’s confidence. The petitioners obtained money from various people and failed to return it. They invested the money in buying properties at various places. The various investments made by the petitioners and the magnitude of the fraud committed by the petitioners are to be ascertained. The petitioners are not cooperating in the investigation, and their custodial interrogation is necessary; hence, he prayed that the present petitions be dismissed. 6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 7. It was laid down by the Hon’ble Supreme Court in P. Chidambaram vs. Directorate of Enforcement, 2019 (9) SCC 24 that the power of pre-arrest is extraordinary and should be exercised sparingly. It was observed: “67. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but 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 to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in 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.” 8. 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. 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.” 9. 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.” 10. The present petitions have to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. The court's discretion in weighing these interests in the facts and circumstances of each case becomes crucial to ensure a just outcome.” 10. The present petitions have to be decided as per the parameters laid down by the Hon’ble Supreme Court. 11. The status report shows that the petitioners had represented that they would invest the money deposited with them and pay a 15% return. They failed to pay the promised return or even to return the amount so taken by them from various people. It was specifically stated that petitioner Roop Ram Shukla had purchased various properties at various places with the money so taken by him. The petitioner-Madhu Bala had used the money to recoup the loss sustained by her in her business. These averments, prima facie, show that the petitioners had taken the money with no intention to return it; hence, prima facie, the petitioners are involved in the commission of an offence punishable under Section 420 of IPC. 12. The status report shows that petitioner-Roop Ram Shukla had not joined the investigation from 10.01.2025 till 19.01.2025. He joined the investigation only on one day, i.e. on 19.01.2025. The petitioner, Roop Ram Shukla, asserted in his petition that he suffered from stomach pain and had to visit Chandigarh. He remained under treatment on 17.01.2025 and 18.01.2025. This plea is prima facie not acceptable. The petitioner would have taken the treatment from the nearest hospital at Rampur Bushehar instead of the hospital at Chandigarh had he been present at Rampur. It shows that the petitioner was never present at Rampur Bushehar and remained at Chandigarh, which corroborates the averments in the status report that the petitioner had no intention of joining the investigation. 13. It was submitted that the informants Kuldeep Azad and Naresh Kumar are the subscribers of Shree Venketeshwara Trading Academy Private Limited. A photocopy of the Form No. INC33 was placed on record to show this fact. Merely because two of the informants are subscribers of a different company will not mean that the complaint made by them is false. The police found after the investigation that money was so transferred from the informant’s account to the petitioners’ account, which corroborates the prosecution's version regarding the payment of money to the petitioners. The payment of funds to petitioners and membership in a company are two distinct transactions that cannot be conflated. The police found after the investigation that money was so transferred from the informant’s account to the petitioners’ account, which corroborates the prosecution's version regarding the payment of money to the petitioners. The payment of funds to petitioners and membership in a company are two distinct transactions that cannot be conflated. Hence, this submission will not help the petitioners. 14. The petitioners are involved in the commission of an economic crime, which is committed after due deliberation. It was held in P Chidambaram (supra) that economic offences are to be treated differently from other offences while considering pre arrest bail. It was observed: Economic - 78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of society. In Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105 : 1998 SCC (Cri) 510 , it was held that in economic offences, the accused is not entitled to anticipatory bail. xxxxxx 80. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless of the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364 : 1987 SCC (Cri) 364 , it was held as under: (SCC p. 371, para 5) “5. … The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.” 81. Observing that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439 : (2013) 3 SCC (Cri) 552 the Supreme Court held as under: (SCC p. 449, paras 34-35) “34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing a serious threat to the financial health of the country. 35. While granting 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 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.”(Emphasis supplied) 82. Referring to Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52: 1998 SCC (Cri) 261 , Directorate of Enforcement v. Bher Chand Tikaji Bora, (1999) 5 SCC 720 : 1999 SCC (Cri) 1045 , while hearing an appeal by the Enforcement Directorate against the order [ Bherchand Tikaji Bora v. State of Maharashtra, Criminal Application No. 2140 of 1998 decided on 21-7-1998 (Bom) ] of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail. 15. The status report shows that the police has to trace the various investments made by the petitioners from the money so collected by them. This is also necessary to show the bona fides of the petitioners. If the petitioners had genuinely invested the money and could not get the return which they hoped, it would show their innocence, while on the other hand, if they had invested the money in the instruments from which the promised return could not have been procured, it would show their fraudulent intention. Hence, the collection of the material regarding the investments made by the petitioners is necessary. 16. Hence, the collection of the material regarding the investments made by the petitioners is necessary. 16. The status report shows that the petitioners had not joined the investigations and they have not cooperated. Since their joining the investigation and cooperation is necessary for proper investigation of the case; hence, the plea of the prosecution that the custodial interrogation of the petitioners is necessary has to be accepted as correct. It was laid down by the Hon’ble Supreme Court in State vs. Anil Sharma, (1997) 7 SCC 187 that where custodial interrogation is required, pre-arrest bail should not be granted. It was observed: - “6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-orientated than questioning a suspect who is well-ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offender” 17. A similar view was taken by the Delhi High Court in Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032 wherein it was observed: - “13. One of the significant factors in determining this question would be the need for custodial interrogation. Without a doubt, custodial interrogation is more effective to question a suspect. The cocoon of protection, afforded by a bail order insulates the suspect and he could thwart interrogation reducing it to futile rituals. But it must be also kept in mind, that while interrogation of a suspect is one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.” 18. The cocoon of protection, afforded by a bail order insulates the suspect and he could thwart interrogation reducing it to futile rituals. But it must be also kept in mind, that while interrogation of a suspect is one of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out.” 18. It was held in P. Chidambaram (supra) that the grant of pre-arrest bail may hamper the investigation. It was observed: “83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knew that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.” 19. In view of the above, the petitioners do not deserve the concession of pre-arrest bail; hence, the present petitions fail and the same are dismissed. 20. The observation made hereinabove shall remain confined to the disposal of the petitions and will have no bearing, whatsoever, on the merits of the cases. 21. The present petition stand disposed of, and so are the pending applications, if any.