Himachal Pradesh High Court

Aman Malhotra vs State Of H.P on 25 October, 2024

( 2024:HHC:10258 )

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 2242 of 2024 Reserved on: 18.10.2024 Date of Decision: 25.10.2024.

           Aman Malhotra                                                          ...Petitioner
                                                   Versus

           State of H.P                                                          ...Respondent


           Coram

Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No

For the Petitioner : Mr. Rajiv Chauhan, Advocate. For the Respondent : Mr. Jitender Sharma, Additional Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for grant

of pre-arrest bail. It has been asserted that the petitioner has

been falsely implicated in FIR No. 158 of 2024, dated 14.09.2024,

registered at Police Station West, District Shimla, H.P. for the

commission of offences punishable under Sections 85, 115(2),

352, 351 (2), 3(5), 238 of Bhartiya Nyay Sahinta, 2023

(hereinafter referred to as BNS). False allegations have been

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

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levelled against the petitioner and he apprehends his arrest by

the police. The petitioner will 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 the victim made a complaint to the police that she

was married to the petitioner. The petitioner used to beat her in a

state of intoxication without any reason. She had reported the

matter twice. The petitioner apologized before the police and

assured them not to beat the informant. The informant was

preparing food on 14.09.2024 when the petitioner came and gave

her beatings with Tawa (pan), stick and shoes. The informant

sustained multiple injuries. He threatened to kill the informant

and asked her to get out of the house. He also took her mobile

phone with him so that she could not contact her mother and her

grandfather. Her mother-in-law and her husband also abused

her for not bringing sufficient dowry. They asked her grandfather

to provide a vehicle for them. Whenever the informant demands

money towards the payment of the fee, the petitioner abuses her.

The police registered the FIR and conducted the investigation.

The police called the petitioner and his mother but both of them

prevaricated. The police seized Pan (tawa), Rolling Pin (belan)

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and Slipper. The petitioner has absconded and has not produced

the stick which was used by him for beating. The petitioner had

given beatings to the informant on the earlier occasion. Hence,

the status report.

3. I have heard Mr. Rajiv Chauhan, learned counsel for

the petitioner and Mr. Jitender Sharma, learned Advocate General

for the respondent/State.

4. Mr. Rajiv Chauhan, learned counsel for the petitioner

submitted that the petitioner is innocent and he was falsely

implicated. He has lodged an FIR against the informant and the

present FIR was lodged by her as a counterblast to the FIR lodged

by the petitioner. The petitioner would abide by the terms and

conditions which the Court may impose. Therefore, he prayed

that the present petition be allowed and the petitioner be

released on bail.

5. Mr. Jitender Sharma, learned Additional Advocate

General for the respondent/State submitted that the petitioner

had beaten the informant. The life of the informant is in danger

in case the accused is released on bail. Therefore, he prayed that

the present petition be dismissed.

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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 vs. Directorate of Enforcement 2019 (9) SCC 24 that

the power of pre-arrest bail 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 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

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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."

( 2024:HHC:10258 )

10. The status report shows that the petitioner had given

beatings to the informant on earlier occasions as well. The

matter was reported to the police and the petitioner assured not

to beat the informant in the presence of the police. He had

executed a written apology letter to this effect. However, he

failed to adhere to this compromise and gave beatings to the

informant on 14.09.2024. The petitioner had also not produced

the stick which was used for the commission of the offence,

therefore, the plea that the custodial interrogation of the

petitioner is required has some force.

11. 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 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

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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

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."

13. The status report shows that the petitioner had

repeatedly given beatings to the informant and there is a force in

the submission of Mr. Jitender Sharma, learned Additional

Advocate General that the life of the informant is in danger in

case the petitioner is released on bail. The petitioner can

intimidate the informant and it would be improper to grant pre-

arrest bail at this stage.

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14. Keeping in view the above facts, the petitioner is not

entitled to the pre-arrest bail. Hence, the present petition fails

and the same is dismissed.

15. The observation made here-in-above shall remain