Himachal Pradesh High Court
Reserved On: 16.09.2024 vs State Of Himachal Pradesh on 3 October, 2024
2024:HHC:9476
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 1943 of 2024
Reserved on: 16.09.2024
Date of Decision: 03.10.2024
Abhishek Kumar Singh ....Petitioner
Versus
State of Himachal Pradesh ....Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? No
For the Petitioner : Mr. Ashok Kumar Sood, Sr. Advocate
with Ms. Pooja Verma, Advocate.
For the Respondent : Mr. Ajit Sharma, Deputy Advocate
General.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for seeking
pre-arrest bail. It has been asserted that the petitioner was working
as a Project Engineer with M/s Kashmiri Lal Construction Pvt Ltd at
Baroti, Tehsil Dharampur, District Mandi, H.P. He was appointed as a
Site Supervisor in the year 2019 and was afterwards promoted as
Project Engineer. He left the company in the year 2023. He was falsely
implicated in FIR no. 60 of 2023, dated 04.05.2023, for the
commission of offences punishable under Section 407 read with
Section 120B of IPC registered at Police Station Dharampur, District
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Mandi, H.P. The petitioner has not committed any offence. He was
implicated by local employees of the company who wanted to save
their skin. The petitioner was not a storekeeper but was posted as a
Project Engineer on 21.03.2021. The petitioner is apprehending his
arrest. He would join the investigation as and when called upon to do
so. He is a B.Tech. (Mechanical) and a respectable member of the
society. He would abide by all the terms and conditions, which the
Court may impose; hence, the petition.
2. The petition is opposed by filing a status report asserting
that a complaint was filed before the Police stating that Kashmiri Lal
Construction Company is executing the work at Dharampur. It has a
store at Baroti. The petitioner was looking after the storage of pipeline
material. The petitioner entrusted this work to Abhinav Singh. He
used to issue a challan regarding the articles taken from the store.
When the store was checked, it was found that 192 Sluice Valves were
missing. Abhinav Singh revealed that the Sluice Valve were issued by
Sunny Thakur and him. When the call was made to Abhinav Singh, he
revealed that 192 Sluice Valves were sold by him. The police conducted
the investigation. Sunny Thakur executed a document stating that
Abhinav Singh had removed 195 80 mm Sluice Valves from the Baroti
store. Petitioner Abhishek Kumar produced an inspection report dated
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17.03.2023 and stated that 1000 Sluice Valves were received in the
store in 2021 out of which 727 were issued and 273 remained in the
store. 192 Sluice Valves were found missing during the inspection. The
record was seized by the police. The call recording was produced by
Pankaj Thakur, Project Manager, Kashmiri Lal Construction Private
Limited in which Sunny Thakur and Abhinav Singh had confessed to
their guilt. Sunny Thakur was interrogated and he revealed on inquiry
that the petitioner was in charge of the store. Abhinav was a
storekeeper. The store in charge used to make the entry of the articles
received in the store and the storekeeper used to take care of the
articles. He had executed an affidavit to sort out the dispute within
three months; however, Abhinav left the job. Abhinav and Abhishek
belong to the same family. Abhinav had taken out 10 Sluice Valves and
handed them over to Sunny with a direction to deliver them to some
person. Sunny complied with this direction and he was paid ₹ 8,000/-.
Abhishek Thakur, Abhinav and Sunny Thakur had removed the Sluice
Valves together. Abhinav had left the job thereafter. Abhishek also left
the job. They switched off their mobiles. They were directed to join the
investigation but they did not join the investigation. Hence, the status
report.
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3. I have heard Mr. Ashok Kumar Sood, learned Senior
Counsel assisted by Ms. Pooja Verma, learned counsel for the
petitioner and Mr. Ajit Sharma, learned Deputy Advocate General, for
the respondent/State.
4. Mr. Ashok Kumar Sood, learned Senior Counsel for the
petitioner submitted that the petitioner is innocent and he was falsely
implicated. As per the status report, he was in charge of the store and
was entrusted with the documentation. The status report shows that
the Sluice Valves were stolen by Sunny and Abhinav Singh. The
petitioner cannot be held liable for the theft. He relied upon the
judgments of Ramesh Datta Shengali versus State, 1994 (2) Crimes 1082,
Sidharth versus State of U.P., 2022 (1) SCC 676, and Nathu Singh v. State
of U.P. (2021) 6 SCC 64, in support of his submission.
5. Mr. Ajit Sharma, learned Deputy Advocate General for the
respondent/State submitted that the petitioner and other co-accused
had misappropriated the sluice valves. The petitioner had left the job
without informing any person and without clearing his dues which
shows his involvement. The petitioner had not joined the
investigation even though he was asked to do so. The sluice valves are
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yet to be recovered and the custodial interrogation of the petitioner is
required, 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 of the case 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
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
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:
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"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. 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."
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10. In the present case, the police found after the investigation
that Abhinav who was looking after the store left the job without
informing any person. The petitioner also left the job after some time
without informing any person. The petitioner was in charge of the
store and he was ultimately responsible for the misappropriation of
the store articles.
11. It was submitted that Abhinav was entrusted with the store
articles and the petitioner cannot be held liable for the
misappropriation. Reliance was placed upon the Ramesh Datta
Shengali (supra) in support of this submission. In the present case, the
status report specifically mentions that the petitioner was in-charge
of the store. The store articles used to be entered by him. The status
report also shows that Abhinav and the petitioner had conspired
together to remove the sluice valves. The matter is at the initial stage
and the truthfulness or otherwise of these allegations is yet to be
determined. Hence, the submission that the petitioner does not have
anything to do with the store articles and only Abhinav was
responsible for the theft cannot be accepted at this stage.
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12. The other judgments cited by the learned Senior Counsel
for the petitioner do not help the petitioner. Sidharth (supra),
considered the question whether the person who was granted pre-
arrest bail is to be arrested at the time of filing the charge sheet and it
was held that there is no such requirement. This question does not
arise in the present case
13. Nathu Singh (supra), dealt with the question whether the
High Court could have granted the protection while rejecting the
application for pre-arrest bail and it was held that a reasonable
condition could be imposed. The Court is not concerned with imposing
the condition at this stage and this judgment will not assist the
petitioner in any manner.
14. The police are yet to recover the sluice valves and the
prayer of the police that custodial interrogation of the petitioner is
required appears to be justified. 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-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
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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, 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 1032wherein 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 investigations. 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
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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. In view of the above, the petitioner does not deserve the
concession of pre-arrest bail. Hence, the present petition fails and the
same is dismissed.
18. The observations made hereinbefore shall remain confined
to the disposal of the petition and will have no bearing, whatsoever,
by KARAN SINGH on the merits of the case.
12:48:50 IST (Rakesh Kainthla)
Judge
3rd October, 2024
(saurav pathania)
