_________________________________________________ vs State Of Himachal Pradesh
2023 Latest Caselaw 14398 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.MP(M) No.1852 of 2023

Reserved on 15.09.2023 Date of Decision: 22.09.2023

_________________________________________________ Budhi Prakash ....Petitioner Versus

State of Himachal Pradesh ...Respondent _________________________________________________ Coram

Hon'ble Mr. Justice Sushil Kukreja, Judge

Whether approved for reporting?1 ________________________________________________ For the petitioner: Mr. Shriyek Sharda, Advocate.

For the respondent: Mr. Jitender Kumar Sharma, Additional Advocate General.

________________________________________________

Sushil Kukreja, Judge

The instant bail application has been filed by the

petitioner under Section 438 of the Code of Criminal

Procedure (Cr.P.C.) for grant of anticipatory bail, in the event

of his arrest, in case FIR No. 107/2023, dated 14.07.2023,

under Section 420 of the Indian Penal Code (for short, 'IPC'),

registered at Police Station Amb, District Una, H.P.

1. Whether reporters of Local Papers may be allowed to see the judgment?

2. Briefly stated the facts of the case, as per the

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status report filed by the respondent/ State, are that on

14.07.2023, the police received a complaint, through Block

Development Officer (BDO), Gagret, which was made by

complainant Surinder Kumar, Pradhan Gram Panchayat

Bhanjal Lower, Tehsil Ghanari, District Una, H.P., alleging

therein that Budhi Prakash (petitioner herein), who was

working as Secretary in the Panchayat, had not executed

any work for last one year and in the month of January 2023,

he had issued a false BPL Certificate to a family, without

informing/consulting the Panchayat and for which, a written

complaint was also given against him to BDO, Gagret on

30.01.2023. Earlier also, the petitioner while posted as

Secretary in Gram Panchayat Choar, had withdrawn money

by forging the signatures and he was suspended and the

matter was pending adjudication before the Court. In the

complaint, it was also alleged that after obtaining the bank

statement of the account of the Panchayat, it was found that

a sum of Rs.1,70,000/- had been withdrawn through different

cheques by forging the signatures of the complainant as he

had not signed any cheque. On the basis of said

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complainant, the FIR in question was registered against the

petitioner.

3. The bail application has been filed by the

petitioner on the ground that he is innocent and has been

falsely implicated in the present case. The learned counsel

for the petitioner contended that nothing incriminating was

found against the petitioner in the investigation. He further

contended that the investigation of the case is complete and

the custodial interrogation of the petitioner is not required,

therefore, it is prayed that the petitioner be enlarged on bail.

4. Per contra, the learned Additional Advocate

General has opposed the application on the ground that the

petitioner is involved in a serious offence of cheating and

keeping in view the gravity of the offence, he is not entitled to

be released on bail. He further contended that the custodial

interrogation of the petitioner is required in this case as the

petitioner is not cooperating with the investigating agency.

5. I have heard learned counsel for the petitioner as

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well as the learned Additional Advocate General and also

gone through the record of the case.

6. It is a settled law that the anticipatory bail can be

granted only in exceptional circumstances where the Court

is, prima facie, of the view that the petitioner has been falsely

implicated in the offence. Being an extraordinary remedy, it

should be resorted to only in a special case.

7. Although, it would be inappropriate to discuss the

evidence in depth at this stage, because it may influence the

trial Court, but the evidence collected during investigation,

prima facie, indicates the involvement of the petitioner in a

serious offence of cheating. The investigation prima facie

reveals that while working as Secretary of the Panchayat, the

petitioner had issued a false BPL certificate and he had also

withdrawn money by forging the signatures of the Pradhan of

the Gram Panchayat. Moreover, a case FIR No.9/2022

dated 19.01.2022 under Section 420 & 409 IPC has also

been registered against the petitioner, which is pending

adjudication before the Court of learned Additional Chief

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Judicial Magistrate, Amb, District Una, H.P.

8. Once the allegations against the petitioner are of

such type, he cannot claim anticipatory bail as a matter of

right. It is a settled law that provisions for grant of

anticipatory bail under Section 438 Cr. P.C., are not to be

mechanically applied. Nature and gravity of the offence, the

position and status of the accused with reference to the

victim and witnesses, likelihood of the accused fleeing from

justice, possibility of the accused tampering with the

evidence and larger public interest are some of the

considerations which must weigh with the Court while

deciding the application for grant of anticipatory bail. Liberty

of a citizen is indeed of a paramount importance, but at the

same time, fair and fearless investigation of case of a serious

nature is of no less importance. The Court shall refrain from

exercising its discretion in favour of the accused under

Section 438, Cr. P.C., if it adversely affects the investigation

and larger public interest.

9. Therefore, in view the facts and circumstances

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of this case, this Court does not find any exceptional ground

to exercise its discretionary jurisdiction under Section 438,

Cr.P.C. to grant him anticipatory bail and, as such, this Court

is of the view that the present anticipatory bail application

has no merit and is liable to be dismissed.

10. Accordingly, the present bail application is

dismissed and the interim protection granted to the petitioner

vide order dated 25.07.2023, stands withdrawn.

11. Before parting with this order, it is hereby clarified

that the aforesaid observations made in this order, have

been made only for the purpose of considering the present

petition for anticipatory bail. Therefore, the same shall not

come in the way of the trial Court for considering the

application that may be filed by the petitioner for regular bail

or at the time of the trial and the trial Court concerned shall

not be influenced by the observations made hereinabove.

( Sushil Kukreja ) Judge September 22, 2023 (VH)