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2025 DIGILAW 379 (HP)

Hardeep Singh v. State of Himachal Pradesh

2025-03-13

RAKESH KAINTHLA

body2025
JUDGMENT : (Rakesh Kainthla, J.) The informant, Rahul Kumar, filed a complaint before the police, asserting that he is a resident of District Una and is engaged in property dealing and construction activity. He has one daughter. He wanted to provide a good education to her. He saw an advertisement for M/s Harnidh Overseas Pathway Education (HOPE) stating that it was a branch of M/s Harnidh Overseas Pathway Education (HOPE) of the UK (United Kingdom), which provides services of visa and employment in the U.K. The informant called the office, and he was assured that HOPE would arrange for the work permit and job for Mrs. Sonali Thakur, the informant’s wife, as a skilled worker. He was also assured that he would be getting a permanent resident (PR) in the U.K., he would be inducted as a partner in one of their ventures in the U.K., and his share would be increased subsequently. An amount of Rs. thirty lakhs was demanded to arrange a visa and for travel expenses. The matter was settled at Rs. twenty seven lakhs plus visa fee and air tickets on an actual basis. The amount was transferred to the account of the petitioner, Hardeep Singh, Managing Director of HOPE. The informant and his family members were sent from India with an assurance that the petitioner would pick them up at the Airport and make arrangements for their stay, but no person met at the airport to take them to their place of stay. The informant contacted some employees of the company who took them to Luton. The informant had to stay at Gurudwara in Luton, where a small room was available. The informant’s wife was told that no job was available for her. The informant was also not inducted as a partner. The informant arranged money from his relatives in India and returned. He demanded the money deposited by him in the account of the petitioner, but the money was not returned. The police registered FIR No. 275 of 2024, dated 06.09.2024, based on these allegations for the commission of an offence punishable under Section 420 of the Indian Penal Code (IPC) at Police Station Sadar, District Una, H.P. and commenced the investigation. 2. The petitioner approached this Court seeking pre- arrest bail. The police registered FIR No. 275 of 2024, dated 06.09.2024, based on these allegations for the commission of an offence punishable under Section 420 of the Indian Penal Code (IPC) at Police Station Sadar, District Una, H.P. and commenced the investigation. 2. The petitioner approached this Court seeking pre- arrest bail. It has been asserted that the petitioner never made any representation or false promise of employment in the U.K. The informant sought the services of the petitioner to secure a visa for his family, which was duly provided. The informant remained in the UK for a considerable period. He could not settle in the U.K. and returned to India. The petitioner entered into a compromise with the informant. He handed over two cheques of Rs. four lakhs each to the informant. He paid Rs. four lakhs in cash to the informant, and the informant issued a receipt to this effect. He transferred the balance amount of Rs. four lakhs in various installments. The informant presented the cheques which were dishonoured, and he filed a complaint under Section 138 of the Negotiable Instruments Act (“in short NI Act”). The incident occurred in Jalandhar, and an FIR in Una could not have been lodged. The custody of the petitioner is not required. The petitioner has no criminal history. He would join the investigation as and when directed to do so and would abide by all the terms and conditions, which the Court may impose. Hence the petition. 3. The petition is opposed by filing a status report, asserting that the informant filed a complaint before the police, the police seized various documents and recorded the statements of witnesses. The police searched for the petitioner, but he could not be traced. The other persons involved in the commission of the offence are yet to be arrested. No other FIR has been registered against the petitioner. Hence, the status report. 4. I have heard M/s. Bhupinder Gupta, Mr Vivek Thakur and Mr Harish Janjhi, Advocates, learned counsel for the petitioner, Mr Lokender Kutlehria, learned Additional Advocate General, for respondent-State and Mr Lokender Paul, learned counsel for the informant. 5. Mr. Bhupinder Gupta, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The petitioner had not made any misrepresentation. The dispute between the parties is purely civil. 5. Mr. Bhupinder Gupta, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The petitioner had not made any misrepresentation. The dispute between the parties is purely civil. The petitioner cooperated with the investigation, and no recovery was effected from him. The petitioner joined the investigation, and his custodial interrogation is not required. Therefore, he prayed that the present petition be allowed and the petitioner be released on pre-arrest bail. 6. Mr Lokender Kutlehria, learned Additional Advocate General for the respondent-State, submitted that the petitioner had made a misrepresentation to the victim/informant. The informant paid Rs. twenty seven lakhs based on the misrepresentation. The petitioner failed to honour the representation made by him. The informant had to return to India after borrowing money from his relatives/friends. The petitioner had not even returned the amount taken by him. Therefore, he prayed that the present petition be dismissed. 7. Mr. Lokender Paul, learned counsel for the informant, adopted the submissions of the learned Additional Advocate General. He further submitted that the petitioner had filed various cases against the informant to compel him to compromise the matter. He is abusing the process of the Court and is not entitled to pre-arrest bail. Hence, he prayed that the present petition be dismissed. 8. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 9. 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. 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.” 10. 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.” 11. 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. 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.” 12. The present application has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 13. It was submitted that the present dispute is civil and relates to the breach of promise. The police are conducting the investigation, and it is premature to say anything. However, the averments in the FIR show that the representations were made to the informant which were not fulfilled. Whether the promises were made without any intention of honouring them or they could not be fulfilled due to some bona fide reason is yet to be ascertained. 14. 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. It only mentions that Gagandeep Singh, Retham Verma and Rajat are to be interrogated. Thus, the pre-trial detention of the petitioner is not justified. 15. The petitioner submitted that some compromise was effected between the parties, and the petitioner had paid Rs.eight lakhs to the informant as a full and final settlement. This is a matter to be investigated, and nothing is required to be said at this stage. 16. It was submitted that the petitioner is not returning the money taken by him from the informant. The informant had sold his house to visit the U.K., and he has been rendered homeless. Therefore, the petition be dismissed. This is a matter to be investigated, and nothing is required to be said at this stage. 16. It was submitted that the petitioner is not returning the money taken by him from the informant. The informant had sold his house to visit the U.K., and he has been rendered homeless. Therefore, the petition be dismissed. This submission is not acceptable. It was laid down by the Hon’ble Supreme Court in Ramesh Kumar vs State NCT of Delhi (2023) 7 SCC 461 that the bail proceedings cannot be turned into recovery proceedings. It was observed:- 23. In Dilip Singh v. State of M.P. [Dilip Singh v. State of M.P., (2021) 2 SCC 779 : (2021) 2 SCC (Cri) 106] , this Court sounded a note of caution in the following words : (SCC p. 780, paras 3-4) “3. By imposing the condition of deposit of Rs 41 lakhs, the High Court has, in an application for pre- arrest bail under Section 438 of the Criminal Procedure Code, virtually issued directions in the nature of recovery in a civil suit. 4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the realisation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration, while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; the reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” 24. A criminal court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to realise the dues of the complainant, and that too, without any trial.” 24. Yet again in Bimla Tiwari v. State of Bihar [Bimla Tiwari v. State of Bihar, (2023) 11 SCC 607 : 2023 SCC OnLine SC 51] , this is what the Court said : (SCC paras 9-11) “9. We have indicated on more than one occasion that the process of criminal law, particularly in matters of grant of bail, is not akin to money recovery proceedings but what has been noticed in the present case carries the peculiarities of its own. 10. We would reiterate that the process of criminal law cannot be utilised for arm-twisting and money recovery, particularly while opposing the prayer for bail. The question as to whether pre-arrest bail, or for that matter regular bail, in a given case is to be granted or not is required to be examined and the discretion is required to be exercised by the Court with reference to the material on record and the parameters governing bail considerations. Putting it in other words, in a given case, the concession of pre-arrest bail or regular bail could be declined even if the accused has made payment of the money involved or offers to make any payment; conversely, in a given case, the concession of pre- arrest bail or regular bail could be granted irrespective of any payment or any offer of payment. 11. We would further emphasise that, ordinarily, there is no justification in adopting such a course that for the purpose of being given the concession of pre-arrest bail, the person apprehending arrest ought to make payment. Recovery of money is essentially within the realm of civil proceedings.” 25. Law regarding the exercise of discretion while granting a prayer for bail under Section 438CrPC having been authoritatively laid down by this Court, we cannot but disapprove the imposition of a condition of the nature under challenge. Recovery of money is essentially within the realm of civil proceedings.” 25. Law regarding the exercise of discretion while granting a prayer for bail under Section 438CrPC having been authoritatively laid down by this Court, we cannot but disapprove the imposition of a condition of the nature under challenge. Assuming that there is substance in the allegation of the complainants that the appellant (either in connivance with the builder or even in the absence of any such connivance) has cheated the complainants, the investigation is yet to result in a charge sheet being filed under Section 173(2)CrPC, not to speak of the alleged offence being proved before the competent trial court in accordance with the settled procedures and the applicable laws. Sub-section (2) of Section 438CrPC does empower the High Court or the Court of Session to impose such conditions while making a direction under sub-section (1) as it may think fit in the light of the facts of the particular case and such direction may include the conditions as in clauses (i) to (iv) thereof. However, a reading of the precedents laid down by this Court referred to above makes the position of law clear that the conditions to be imposed must not be onerous unreasonable or excessive. In the context of the grant of bail, all such conditions that would facilitate the appearance of the accused before the investigating officer/court, unhindered completion of investigation/trial and safety of the community assume relevance. However, the inclusion of a condition for payment of money by the applicant for bail tends to create an impression that bail could be secured by depositing money alleged to have been created. That is really not the purpose and intent of the provisions for the grant of bail. 17. Therefore, the bail proceedings cannot be used to recover the amount advanced by the informant to the petitioner. 18. Since the custodial interrogation of the petitioner is not required, therefore, no useful purpose would be served by detaining the petitioner in custody. 19. Hence, the present petition is allowed and the order dated 18.02.2025 is made absolute. 20. The observations made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.