( 2025:HHC:16488 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No.1130 of 2025 Reserved on: 15.05.2025 Date of Decision: 29.05.2025 Rakesh Shah …Petitioner Versus State of Himachal Pradesh & Anr. ....Respondents Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No. For the Petitioner : Mr. N.K. Thakur, Senior Advocate, with Mr. Divya Raj Singh, Advocate. For the Respondent – State : Mr. Lokender Kutlehria, Additional Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking pre-arrest bail. It has been asserted that the police have registered an FIR No. 53 of 2025, dated 14.05.2025 for the commission of offences punishable under Sections 376, 506 & 34 of Indian Penal Code (for short IPC) at Police Station Gagret, District Una, H.P. As per the allegations in the FIR, the victim was acquainted with co-accused Ajay Chaudhary. He started harassing the victim on the phone. She informed her parents and filed a complaint against him. The 2( 2025:HHC:16488 ) informant’s mother took her to the petitioner when she was 16 years old. The petitioner gave her water, and she became unconscious. The petitioner took her to a private room where he committed a wrong act upon her. The petitioner forced her to compromise the matter. The informant had made false complaints earlier, which were reported to the Women Police Station, Una. This complaint was closed after the inquiry. She again made a complaint, and preventive proceedings were drawn. The complaint is an abuse of the process of law. The silence for 11 years casts a shadow of doubt on the informant’s testimony. The informant had filed several cases against the petitioner before various authorities, who found the informant's story to be false. The petitioner is a local resident. He has deep roots in the society, and there is no chance of his absconding. He would abide by the terms and conditions which the Court may impose. The petitioner is innocent till he is proven guilty. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail. 2. The State has filed a copy of the FIR showing that the co- accused harassed the informant at the petitioner’s instance. The informant’s mother took her to the petitioner when she was 16 years old. The petitioner served water to her, and she became unconscious. The petitioner took her to a room and did some wrong act with her. 3( 2025:HHC:16488 ) The matter was compromised before the Panchayat, and the Panchayat also imposed a fine upon the petitioner. The petitioner told the informant’s parents that he would not do anything wrong with her. The co-accused forced the informant to marry him. The informant initially agreed, but later on she found out that he was acting at the instance of the petitioner. The co-accused also gave some drink to the informant. She became unconscious and co- accused raped her. The informant made complaints against the petitioner and the co-accused before Deputy Commissioner, Una. The complaint was sent to the police, and Zero FIR was registered on 15.05.2023. No action was taken. The informant made the complaint online. She also wrote letters to this Court. The matter was inquired through DLSA, Una. The police registered the FIR and conducted the investigation. 3. I have heard Mr N.K. Thakur, learned Senior Counsel, assisted by Mr. Divya Raj Singh, learned counsel for the petitioner and Mr Lokender Kutlehria, learned Additional Advocate General, for the respondent-State. 4. Mr. N.K. Thakur, learned Senior Counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. 4( 2025:HHC:16488 ) The allegations in the FIR are false. The victim waited for 11 years before reporting the matter to the police. She had earlier filed a complaint, which was compromised. She also made a complaint to the police, and it was found that the allegations made by her were incorrect. Informant’s parents also stated that the informant was mentally unstable. He relied upon the photocopies of the statements recorded by the police and the compromise effected between the parties. He prayed that the present petition be allowed and the petitioner be released on bail. 5. Mr Lokdender Kutlehria, learned Additional Advocate General, for the respondent-State, submitted that the allegations made by the informant are serious. She had made various complaints to various authorities, but no action was taken. She also made a complaint to this Court, which was inquired through the Secretary of DLSA. The petitioner had raped the informant when she was aged 16 years. The investigation is at the initial stage, and the release of the petitioner will affect the investigation adversely. 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. 5( 2025:HHC:16488 ) 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. 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 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 6( 2025:HHC:16488 ) 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.” 10. The allegations in the FIR show that the petitioner had done some wrong act with the informant when she was 16 years old. It was laid down by the Hon’ble Supreme Court in X. Versus State of Maharashtra and another, 2023 SCC Online SC 279 that pre-arrest bail 7( 2025:HHC:16488 ) should not be granted to a person accused of committing an offence punishable under Section 376 of the IPC. It was observed: “22. Surprisingly, none of the aforesaid aspects have been touched upon in both the impugned orders. The nature and gravity of the alleged offence have been disregarded. So has the financial stature, position and standing of the accused vis-a-vis the appellant/prosecutrix been ignored. The High Court has granted anticipatory bail in favour of the respondent No. 2/accused in a brief order of three paragraphs, having been swayed by the 'star variations in the narration of the prosecutrix' implying thereby that what was originally recorded in the FIR, did not make out an offence of rape, as defined in Section 375 IPC, which is an erroneous assumption. Even if the first Supplementary statement of the appellant/prosecutrix recorded in the evening hours of 6th August 2022, the date on which the FIR had been registered against the respondent No.2/accused in the first half of the same day, her second Supplementary statement recorded on 6th September 2022 and the Medico-Legal Report of the doctor who had examined the appellant/prosecutrix on 8th August 2022, are kept aside for a moment, we find that there was still sufficient material in the FIR that would prima facie attract the provision of Section 376, IPC. In our opinion, these factors ought to have dissuaded the High Court from exercising its discretion in favour of the respondent No.2/accused for granting him anticipatory bail. 11. Reliance was placed upon the photocopy of the compromise. However, the informant is not a signatory to the compromise, and no advantage can be derived from it. 12. The reliance was also placed upon the statement made by the informant before the police, in which she had stated that she did not want any action on her complaint. The authenticity of these documents is yet to be seen. The investigation is at the initial stage, 8( 2025:HHC:16488 ) and the allegations in the FIR are to be treated as correct. Once the allegations are taken to be correct, the prima facie involvement of the petitioner is established. 13. It was submitted that there is a delay in the registration of the FIR. This submission will not help the petitioner. The informant specifically stated that she had made complaints to various authorities, but no action was taken on her complaints. Therefore, the delay has been prima facie explained. Moreover, delay is not sufficient to discard the contents of the FIR, and the delay may put the Court on guard regarding the correctness of the allegation. However, that is a matter for trial and is not to be considered at this stage. 14. The investigation is at the initial stage. FIR was only lodged on 14th May, 2025. The allegations against the petitioner are serious and do not justify the grant of pre-arrest bail. 15. It was submitted on behalf of the State that custodial interrogation of the petitioner is necessary, keeping in view the nature of allegations made against the petitioner. This has 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: - 9( 2025:HHC:16488 ) “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 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” 16. 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.” 17. It was held in P Chidambaram (supra) that the grant of pre- arrest bail may hamper the investigation. It was observed: 10( 2025:HHC:16488 ) “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.” 18. Consequently, the petitioner is not entitled to the concession of pre-arrest bail. Hence, the present petition fails, and the same is dismissed. 19. The observations made here-in-before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 29th May, 2025 (Shamsh Tabrez)