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2025 DIGILAW 705 (HP)

Inder Singh v. State of Himachal Pradesh

2025-04-09

RAKESH KAINTHLA

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JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition seeking pre-arrest bail. It has been asserted that a false complaint was made against the petitioner which resulted in registration of F.I.R. No. 33 of 202024 dated 27.12.2024 for the commission of offences punishable under Sections 331 (4), 305 , 317 (2) and 3 (5) of Bharatiya Nyaya Sanhita, 2023 ( BNS ) at Police Station Rehan, District Kangra, H.P. The name of the petitioner was not mentioned in the F.I.R. and his name was disclosed by co-accused Sanjeev Kumar. The petitioner was present with his family members on the date of the incident. The allegations regarding the theft of the digging machine are yet to be proved by leading evidence. The allegations in the F.I.R. are vague and do not disclose the commission of the offence. The petitioner has three minor children. He belongs to a respectable family and would abide by all 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 made a complaint to the police that his family members were away from their residence located at Dehri. The informant visited his house and he found that the locks were missing. He checked the house and found that the articles lying in the drawing room were scattered and the almirah was broken. The locker was cut. 150 silver coins, one jug, eight glasses, ten bowls and two cooking pots (Donge), two ornament sets, twenty-four silver bangles, four Kadas, four anklets, two gold rings, two small sets and one pearl set were missing. The police registered the F.I.R. and conducted the investigation. The police arrested Sanjeev Kumar. He identified the place where he had gone with co-accused/petitioner Inder Singh. Rashpal Sharma made a statement that one digging machine was also missing. The Police searched for Inder Singh, but he could not be found. A search of his father’s house was conducted and a digging machine was recovered, which was identified by the caretaker. The police seized the machine. Inder Singh joined the investigation. He disclosed that he had sold one silver coin for Rs.2000/- and had handed over his Aadhar Card. He had sold the other coins and ornaments at Amirtsar (Punjab). He got recovered the coin and photocopy of his Aadhar from the jeweller. The police seized the machine. Inder Singh joined the investigation. He disclosed that he had sold one silver coin for Rs.2000/- and had handed over his Aadhar Card. He had sold the other coins and ornaments at Amirtsar (Punjab). He got recovered the coin and photocopy of his Aadhar from the jeweller. The police seized them. The police also arrested Jarnail Singh, who got recovered two anklets. Petitioner Inder Singh also got recovered two silver glasses. The other gold ornaments are yet to be recovered. 2 kg 446 grams of silver and silver ornaments have been recovered. Value reports and bills are yet to be obtained. An F.I.R. No. 153 of 2015 dated 04.06.2015 for the commission of offences punishable under Sections 452, 354, 506, 323, and 294 of Indian Penal Code (IPC) has already been registered against the petitioner. Hence, the status report. 3. I have heard Mr. Ganesh Barowalia, learned counsel for the petitioner and Mr. Ajit Sharma, learned Deputy Advocate General for the respondent/State. 4. Mr. Ganesh Barowalia, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The petitioner has joined the investigation as per the directions of this Court. The police have recovered various articles as per the status report. Custodial interrogation of the petitioner is not required, therefore, he prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr. Ajit Sharma, learned Deputy Advocate General submitted that the police are yet to recover the gold ornaments stolen by the petitioner and the co-accused. He has criminal antecedents and is not entitled to bail. Therefore, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions of learned counsel for the parties 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. 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. 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. 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. A perusal of the status report shows that the petitioner has got various articles recovered, which were identified by the informant’s mother. The Jeweller also produced the photocopy of the Aadhar of the petitioner. Two anklets gifted by the petitioner to his sister-in-law were also recovered from the Amritsar. Twenty-six coins, one silver bangle, and forty-two grams of silver nugget (which was prepared after melting seven bangles) were also recovered at the instance of the petitioner. Similarly, 226 grams of silver nugget, prepared by melting the silver ornaments, bowl and glass, was recovered. Two anklets, three sets of toe rings, and 35 grams of silver nugget were also recovered. 1.3 kg of silver nugget, prepared by melting the silver ornaments, was recovered. The recovery of the stolen articles at the instance of the petitioner, prima facie, shows his involvement in the commission of crime. 11. Learned Deputy Advocated General submitted that the police is yet to recover gold ornaments and custodial interrogation of the petitioner is necessary for this purpose. The recovery of the stolen articles at the instance of the petitioner, prima facie, shows his involvement in the commission of crime. 11. Learned Deputy Advocated General submitted that the police is yet to recover gold ornaments and custodial interrogation of the petitioner is necessary for this purpose. Since the stolen articles have not been recovered, the plea of the police is 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 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 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” 12. 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.” 13. 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.” 13. 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.” 14. An F.I.R. was registered against the petitioner, which shows that the petitioner has criminal antecedents. This Court exhaustively dealt with the relevance of criminal antecedents in Aminodin vs State of H.P., 2024 HHC 6091 and held after referring to various judgments that a Judge must consider the criminal antecedents of the accused, the nature of such offences and his general conduct while considering the bail petition. The bail should not be generally granted to an accused having criminal antecedents when there is a likelihood of the commission of the crime. 15. It was held in V. Senthil Balaji v. Enforcement Directorate , 2024 SCC OnLine SC 2626 that where the petitioner can become a threat to society because of his criminal antecedent he should not be released on bail. It was observed: “27…..An exception will also be in a case where, considering the antecedents of the accused, there is every possibility of the accused becoming a real threat to society if enlarged on bail. The jurisdiction to issue prerogative writs is always discretionary.” 16. Similarly, it was held in Union of India v. Barakathullah , 2024 SCC OnLine SC 1019 that where the persons were involved in the commission of offence similar offences, they should not be released on bail. It was observed: - “20. The jurisdiction to issue prerogative writs is always discretionary.” 16. Similarly, it was held in Union of India v. Barakathullah , 2024 SCC OnLine SC 1019 that where the persons were involved in the commission of offence similar offences, they should not be released on bail. It was observed: - “20. … So far as the respondents in the instant appeals are concerned, they are in custody hardly for one and half years, apart from the fact that all the respondents are shown to have been involved in previous cases. There are about 8 to 9 previous cases shown in the chargesheet against the respondents, except accused no. 1, 4 and 6 who are shown to have been involved in two cases. Considering the nature and gravity of the alleged offences and considering their criminal antecedents, in our opinion High Court should not have taken a lenient view, more particularly when there was sufficient material to show their prima facie involvement in the alleged offences under the UAPA. 17. Therefore, the criminal antecedents of the petitioner would disentitle him to the concession of bail. Consequently, the present bail petition fails and the same stands dismissed. 18. The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.