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Himachal Pradesh High Court · body

2025 DIGILAW 682 (HP)

Rajneesh Thakur v. State of H. P.

2025-04-08

RAKESH KAINTHLA

body2025
JUDGMENT : (Rakesh Kainthla, J.) The petitioner has filed the present petition seeking pre-arrest bail. It has been asserted that FIR No. 27 of 2025, dated 20.01.2025 was registered at Police Station, Baddi, District Solan for the commission of offences punishable under Sections 406 and 420 of Indian Penal Code ( in short ‘IPC’) . As per the prosecution, the informant’s wife had lodged an FIR No. 32/2022 for the commission of an offence punishable under Section 498A of the IPC at Police Station Ramshehar against the informant and his family members. The informant wanted to file a petition for quashing the aforementioned FIR before the High Court. He met the petitioner at Baddi. The petitioner told the informant that he knew many Advocates in the Supreme Court and High Court. He would talk to them and ensure the filing of the petition for quashing of the FIR before the High Court. The petitioner asked the informant to pay him Rs. 1,50,000/-. The informant paid Rs.50,000/-. The petitioner went to Bikaner where the informant was posted. He obtained the informant’s vakalatnama and got his affidavit attested at the District Court, Bikaner. The informant did not contact the petitioner afterwards. He did not sign the copy of the petition. The petitioner tried to contact the informant but he did not succeed. The informant filed an application before the Court and FIR No.27 of 2025 was registered pursuant to the orders passed by learned Judicial Magistrate First Class, Nalagarh. The petitioner joined the investigation on 18.03.2025 at 7:45 AM, as per the direction passed by learned Additional Sessions Judge, Nalagarh. The petitioner would abide by the terms and conditions, which the Court may impose. Hence, the present petition. 2. The petition is opposed by filing a status report asserting that the informant intended to file a petition for quashing of FIR No.32/2022 registered by his wife against him and his family members. The informant met the petitioner in Baddi. The petitioner informed the informant that he was an Advocate practising in the Hon’ble Supreme Court of India and the High Court of Himachal Pradesh. He assured the informant to file a petition for quashing of the FIR. The petitioner demanded a fee of Rs.1,50,000/-, and the informant paid Rs. 74,500/- to the petitioner through Google Pay. The petitioner informed the informant that he was an Advocate practising in the Hon’ble Supreme Court of India and the High Court of Himachal Pradesh. He assured the informant to file a petition for quashing of the FIR. The petitioner demanded a fee of Rs.1,50,000/-, and the informant paid Rs. 74,500/- to the petitioner through Google Pay. However, the petitioner did not file any petition and also not respond to the calls of the informant. Subsequently, the informant discovered that the petitioner was not an Advocate but a local reporter based in Baddi. The police registered the FIR and conducted the investigation. The police checked the statement of account and found that the informant had transferred Rs. 35,000/- through Google pay to the petitioner’s account on different dates. He had also transferred Rs.15,000/- to the petitioner’s account from the account of his friend Suraj. He paid Rs.24,000/- to the petitioner in cash. No petition was filed by the petitioner. The petitioner had filed the pre-arrest bail petition before the learned Additional Sessions Judge, who directed the petitioner to join the investigation. The petitioner did not join the investigation and the learned Additional Sessions Judge dismissed the petition for seeking pre-arrest bail. The petitioner is to be interrogated and the amount is to be recovered from him; hence, the status report. 3. I have heard Mr. Sudhir Kumar Pandey, learned Counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for the respondent/State. 4. Mr Sudhir Kumar Pandey, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. He had taken the money from the informant to file a petition in the High Court. The petitioner contacted a counsel to file the petition. The petition was drafted but the informant never appeared in the office of the Advocate to sign the petition. The petitioner was ready to return the amount taken by him from the informant. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Ajit Sharma, learned Deputy Advocate General for the respondent-State, submitted that the petitioner had made a false representation to the informant that he was an Advocate. He had received Rs.74,000/- from the informant for filing a petition and he failed to file the petition. 5. Mr. Ajit Sharma, learned Deputy Advocate General for the respondent-State, submitted that the petitioner had made a false representation to the informant that he was an Advocate. He had received Rs.74,000/- from the informant for filing a petition and he failed to file the petition. The petitioner is not an Advocate, and the representation made by him that he is an Advocate and would file a petition for quashing the FIR before the High Court was incorrect. The police are to interrogate the petitioner and recover the amount taken by the petitioner from the informant. Therefore, he prayed that the present petition 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 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, 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 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. It was held in P Chidambaram (supra) that economic offences are to be treated differently from other offences. It was observed: Economic offences 78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. It was held in P Chidambaram (supra) that economic offences are to be treated differently from other offences. It was observed: Economic offences 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 [ 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 [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 consequences 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 [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 viewed with a different approach in the matter of bail. Economic offences constitute a class apart and need to be viewed 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 [Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52 : 1998 SCC (Cri) 261 ], in Directorate of Enforcement v. Bher Chand Tikaji Bora [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. 9. 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. 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.” 10. 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.” 11. In the present case, the petitioner was not an Advocate, and the representation made by him to the informant that he was an Advocate and would file a petition for quashing the FIR before the High Court was clearly false. The informant paid the money to the petitioner based on this representation, but the petitioner did not file any petition. Therefore, prima facie, the ingredients of the offence punishable under Section 420 of the Indian Penal Code are satisfied. 12. The informant paid the money to the petitioner based on this representation, but the petitioner did not file any petition. Therefore, prima facie, the ingredients of the offence punishable under Section 420 of the Indian Penal Code are satisfied. 12. The petitioner claimed that the informant never visited the office of the learned Advocate to sign the petition and the petition could not be filed before the High Court. The informant and not the petitioner is responsible for not filing the petition. This submission is not acceptable. It was asserted in Para 9 of the petition that the petitioner visited Bikaner, where the informant was posted and he obtained the Vakalatnama and the affidavit of the informant at Bikaner. This shows that the informant never visited the office of the Advocate and the petitioner had visited the informant’s place of posting to obtain the various documents. Therefore, it was for the petitioner to obtain the signatures of the informant on the petition by visiting the Bikaner and he cannot take a plea that the petition could not be filed because the informant never visited the office of the learned Advocate. Moreover, the draft petition prepared by the learned Advocate was never placed on record to show the bona fides of the petitioner. Hence, this submission will not help the petitioner. 13. The petitioner claimed that he wanted to return the money but could not do so because the informant never met him. This plea is also not acceptable. The money was transferred by Google Pay from the informant’s account and could have been easily returned by the same method. Hence, the plea taken by the petitioner that he acted in a bona fide manner is prima facie not acceptable. 14. The petitioner had represented himself to be an Advocate when he was not. He had taken money from the informant to file a petition which was never filed. This shows that the offence was committed deliberately. The police asserted that the petitioner is to be interrogated to verify the averments in the FIR as well as to recover the money paid by the informant to the petitioner. This plea has to be accepted as correct. It was laid down by the Hon’ble Supreme Court in State Versus Anil Sharma (1997) 7 SCC 187 that where custodial interrogation is required, pre-arrest bail should not be granted. It was observed: - “6. This plea has to be accepted as correct. It was laid down by the Hon’ble Supreme Court in State Versus 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- oriented 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 disintering 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 be reduced 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” 15. 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.” 16. 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. 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 knows 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.” 17. The petitioner was directed to join the investigation by learned Additional Sessions Judge, Nalagarh, but he failed to do so. This is also a circumstance to show that the petitioner cannot be interrogated without seeking his custody. 18. In view of the above, the petitioner is not entitled to the concession of pre-arrest bail. Consequently, the present petition fails and the same is dismissed. 19. 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.