Himachal Pradesh High Court
Parveen Kumar vs State Of H.P on 22 November, 2023
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 2575 of 2023
Reserved on: 06.11.2023
Date of Decision: 22.11.2023
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Parveen Kumar ... petitioner
Versus
State of H.P ....Respondent
Coram
Hon'ble Mr. Justice Rakesh Kainthla, Judge.
of
Whether approved for reporting?1 No
For the Petitioner : Mr. Dev Raj, Advocate.
For the Respondent rt : Mr. R.P. Singh, Deputy Advocate
General with HC Narain Dass, IO
Police Station Baddi, District
Solan, H.P.
Rakesh Kainthla, Judge
Petitioner has filed the present petition for seeking
the pre-arrest bail. It has been asserted that FIR no.166 of 2023
dated 17.06.2023 was registered against the petitioner in Police
Station Baddi, District Solan, for the commission of an offence
punishable under Sections 406 and 420 of IPC.
2. As per the prosecution, the petitioner was filing the
GST returns of the informant Dev Kumar Ray. The informant
used to transfer the GST amount on monthly basis and the
petitioner was providing the challan and the GST return to him.
The informant found that the petitioner had not deposited the
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
GST amount and was providing fake challan and GST returns.
The informant had transferred ₹35,64,822/- from his account
to the account of the petitioner. The petitioner was doing a part-
time job for filing the GST return of the informant. The
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informant was paying ₹12,000/- per month to the petitioner.
The informant used to transfer the payment and consultancy fee
to the account of the petitioner. The informant stopped the
of
payment of monthly consultancy fees after 2021. He promised
the petitioner to pay the consultancy fee after the improvement
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of his financial condition. However, no consultancy fee was paid
for 11 months and the petitioner stopped filing the return of the
informant. The petitioner has already submitted the return of
₹32,80,839/- and the remaining amount of ₹2,83,983/- was the
consultancy amount. The petitioner would abide by all the terms
and conditions, which may be imposed by the Court; hence, it
was prayed that the present petition be allowed and the
petitioner be released on pre-arrest bail.
3. The police filed a status report asserting that the
informant made a complaint to the police that he had
transferred the amount to the petitioner but the returns were
not filed by him (petitioner) nor the amount was deposited. The
petitioner submitted the fake challan and returns to the
informant. The Police registered the FIR and conducted the
investigation. The police checked the Bank record and found
that a total amount of ₹41,25,285/- was transferred from the
bank account of the informant to the bank account of the
petitioner. The detail of the amount deposited in the account of
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the informant was checked and it was found that an amount of
₹16,96,539/- was yet to be deposited in the account. The
petitioner has not joined the investigation despite repeated
of
directions. The petitioner has misappropriated the amount. He
had also invested ₹91,53,003/- in Axis Direct Fund. The laptop
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and the equipment used by the petitioner for preparing the fake
GST form are to be recovered. Hence, it was prayed that the
present petition be dismissed.
4. I have heard Mr. Dev Raj, learned counsel for the
petitioner and Mr. R.P. Singh, learned Deputy Advocate General,
for the respondent/State.
5. Mr Dev Raj, learned counsel for the petitioner
submitted that the petitioner is innocent and he was falsely
implicated. The prosecution has changed the amount. Initially,
it was stated that ₹35,64,822/- were transferred to the
petitioner which amount has been enhanced to ₹41,25,285/-.
The petitioner had submitted the GST returns and he has
furnished the proof of the same with the application. Therefore,
he prayed that the present petition be allowed and the petitioner
be released on pre-arrest bail.
6. Mr. R.P. Singh, learned Deputy Advocate General for
.
the respondent/State submitted that the investigation is at an
initial stage. The police have yet to recover the equipment used
for preparing the fake documents. The petitioner had invested
the money in Axis Direct Fund and its source is also to be traced.
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The petitioner had misappropriated the money handed over to
him for filing the GST return of the informant. This offence was
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committed deliberately after due preparation. Hence, he prayed
that the present petition be dismissed.
7. I have gone through the rival submissions at the bar
and have gone through the records carefully.
8. 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
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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."
9. While dealing with the economic offences, the
Hon'ble Supreme Court held in P. Chidambaram(supra) that
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power under Section 438 of Cr.P.C. is to be exercised sparingly in
case of economic offences. It was observed:-
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"78. Power under Section 438 Cr.P.C. 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
vs. Ashok Kumar Jain (1998) 2 SCC 105, it was held that in
economic offences, the accused is not entitled to
anticipatory bail.
79. The learned Solicitor General submitted that the
"Scheduled offence" and "offence of money laundering"
are independent of each other and PMLA being a special
enactment applicable to the offence of money laundering
is not a fit case for grant of anticipatory bail. The learned
Solicitor General submitted that money laundering being
an economic offence committed with much planning and
deliberate design poses a serious threat to the nation's
economy and financial integrity and in order to unearth
the laundering and trail of money, custodial interrogation
of the appellant is necessary.
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 vs. Mohanlal Jitamalji Porwal and others (1987) 2
SCC 364, it was held as under:-
"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
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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-
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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
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apart and need to be visited with a different approach in
the matter of bail, in Y.S. Jagan Mohan Reddy vs. CBI (2013)
7 SCC 439, the Supreme Court held as under:-
"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 serious threats 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, the 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."
[underlining added]
82. Referring to DukhishyamBenupani, Assistant Director,
Enforcement Directorate (FERA) vs. Arun Kumar Bajoria
(1998) 1 SCC 52, in Enforcement Officer, Ted, Bombay v. Bher
Chand Tikaji Bora and others (1999) 5 SCC 720, while
hearing an appeal by the Enforcement Directorate against
the order of the Single Judge of the Bombay High Court
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granting anticipatory bail to the respondent thereon, the
Supreme Court set aside the order of the Single Judge
granting anticipatory bail.
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
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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".
10.
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The police verified the amount deposited in the
account of the informant and found that an amount of
₹16,96,539/- was yet to be deposited on behalf of the informant.
This was verified from the GST portal and has to be accepted as
correct. The petitioner has filed the details of the amount paid
by him on behalf of the informant, however, the authenticity of
the same is yet to be verified. The prosecution specifically
asserted that the petitioner had prepared the fake documents
and the equipment from which the documents were prepared is
yet to be recovered. The fact that the petitioner has submitted a
detail of the amount deposited by him, which is contrary to the
official detail prima facie corroborates the submission of the
prosecution that the fake documents were prepared and their
authenticity is yet to be determined.
11. The offences alleged against the petitioner are
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serious. These are economic offences, which were committed
after due deliberations. The informant trusted the petitioner to
submit the return on his behalf and handed over the money to
him. The petitioner did not honour the trust placed upon him
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and such conduct cannot be viewed lightly.
12. The investigation is at an initial stage. The police
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have to ascertain the modus operandi of the petitioner. The
police have to recover the equipment with which, the fake
documents were prepared. In these circumstances, the plea of
the police that custodial interrogation is required has some
force. It was laid down by 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-
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,
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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
offenders."
13. Therefore, in view of the above, the petitioner is not
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entitled to pre-arrest bail. Hence, the present petition fails and
the same is dismissed.
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14. The observations made hereinbefore shall remain
confined to the disposal of the petition and will have no bearing
whatsoever on the merits of the case.
(Rakesh Kainthla)
Judge
22nd November, 2023
(saurav pathania)
