Neutral Citation No. ( 2025:HHC:20996 ) IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1224 of 2025 Reserved on: 24.06.2025 Date of Decision: 03.07.2025. Lekh Raj ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : M/s Muskan Katoch and Rajat, Advocates. For the Respondent/State : Mr. Prashant Sen, 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 has been falsely implicated. The contents of the FIR do not make out any case against the petitioner. The petitioner would abide by all the terms and conditions, which the Court may impose; hence, the petition. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 Neutral Citation No. ( 2025:HHC:20996 ) 2. The petition is opposed by filing a status report asserting that the police received a secret information on 30.04.2025 that a person was carrying out construction with the help of Government cement. The police went to the spot and found that construction was going on. Kuldeep Chand was present on the spot, who was carrying out the construction work. The police searched the cowshed in which the construction material was kept. The police found 16 sealed and 7 open cement bags bearing the words ACC, not for retail sale/not available for resale (only HP Government supply). Kuldeep Chand could not produce any license for possessing the bags. The police obtained the samples and seized the bags. The police conducted the investigation and found that the money was sanctioned to Kuldeep Chand under the Pradhan Mantri Awas Yojana. He had purchased 23 cement bags from Harbans Lal for ₹ 8,000/-. Harbans Lal disclosed that he had delivered 23 bags to Kuldeep Chand at the instance of the petitioner, who is the Pradhan of Gram Panchayat Radda. The police seized the record and found that 70 bags were supplied to the Gram Panchayat, Radda. The bill was signed by the petitioner. The record of the Panchayat also 3 Neutral Citation No. ( 2025:HHC:20996 ) showed the purchase of the cement bags from the civil supply. The bags were transported by Harbans Lal, and the payment was made to him by RTGS. The petitioner stated during the investigation that he had kept the cement near the place of construction. He did not know Kuldeep Chand. As per the report submitted by the Technical Assistant, 70 cement bags were used during the construction. The samples of concrete used for the construction of the path have been taken; hence, the status report. 3. I have heard M/s. Muskan Katoch and Rajat, learned counsel for the petitioner, and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State. 4. Ms. Muskan Katoch, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. As per the report submitted by the Technical Assistant, 70 bags were utilised for the construction of the path. The Office of the Civil Supply had sold 70 bags of cement to the Gram Panchayat, which has been utilised. There is no evidence to connect the petitioner with the commission of the crime except the statement made by the co-accused, which is inadmissible. 4 Neutral Citation No. ( 2025:HHC:20996 ) The other co-accused were released by the police after serving a notice upon them; therefore, she prayed that the present petition be allowed and that the petitioner be released on bail. 5. Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State, submitted that the petitioner had sold the Government cement to Kuldeep Chand; therefore, he is guilty of the commission of a heinous offence. The investigation is continuing, and the report from FSL is awaited; 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 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 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 5 Neutral Citation No. ( 2025:HHC:20996 ) application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors are considered 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 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 6 Neutral Citation No. ( 2025:HHC:20996 ) 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. It was held in Devinder Kumar Bansal v. State of Punjab, (2025) 4 SCC 493: 2025 SCC OnLine SC 488 that pre-arrest bail can be granted in exceptional circumstances where the Court is of the view that the petitioner was falsely implicated in the case, and the presumption of innocence cannot be a reason to grant bail. It was observed at page 501: “21. The parameters for the grant of anticipatory bail in a serious offence like corruption are required to be satisfied. Anticipatory bail can be granted only in exceptional cir- cumstances where the court is prima facie of the view that the applicant has been falsely enroped in the crime or the allegations are politically motivated or are frivolous. So far 7 Neutral Citation No. ( 2025:HHC:20996 ) as the case at hand is concerned, it cannot be said that any exceptional circumstances have been made out by the peti- tioner-accused for the grant of anticipatory bail, and there is no frivolity in the prosecution. 22. In the aforesaid context, we may refer to a pronounce- ment in CBI v. V. Vijay Sai Reddy [CBI v. V. Vijay Sai Reddy, (2013) 7 SCC 452: (2013) 3 SCC (Cri) 563], wherein this Court expressed thus: (SCC p. 465, para 34) “34. While granting bail, the court has to keep in mind the nature of accusation, 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, reasonable possibility of securing the presence of the accused at the trial, reasonable appre- hension of the witnesses being tampered with, the larger interests of the public/State and other similar considera- tions. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words “reason- able grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only sat- isfy itself as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not ex- pected, at this stage, to have the evidence establishing the guilt of the accused beyond a reasonable doubt.” (emphasis in original and supplied) 23. The presumption of innocence, by itself, cannot be the sole consideration for the grant of anticipatory bail. The presumption of innocence is one of the considerations which the court should keep in mind while considering the plea for anticipatory bail. The salutary rule is to balance the cause of the accused and the cause of public justice. Over solicitous homage to the accused's liberty can, sometimes, defeat the cause of public justice. 11. The present is to be decided as per the parameters laid down by the Hon’ble Supreme Court. 8 Neutral Citation No. ( 2025:HHC:20996 ) 12. The status report shows that the civil supply had sold 70 bags of cement to the Gram Panchayat. The report of the Technical Assistant shows that 70 bags were utilised for the construction of the path; therefore, prima facie, the version of the prosecution that the petitioner had sold 23 bags to Kuldeep Chand out of the cement bags supplied to the Gram Panchayat is not established on record. 13. It was submitted that the quality of the concrete is to be checked, and the report of the Technical Assistant may not be correct. The petitioner cannot be detained in custody on the ground that some adverse report is likely to be issued against him. The Court has to see the material on record collected by the prosecution at this stage, which does not justify his pre-trial detention. 14. The police asserted that the notices were served upon the co-accused-Harbans Lal and Kuldeep Chand, under Section 35(3) of BNSS, which means that the police did not consider it proper to arrest them. No reason has been assigned for the pre- trial detention of the petitioner; hence, in these circumstances, the pre-trial detention of the petitioner is not justified. 9 Neutral Citation No. ( 2025:HHC:20996 ) 15. Consequently, the present petition is allowed, and the order dated 26.05.2025 is made absolute. 16. The observations made hereinbefore shall remain confined to the disposal of the present petition and will have no bearing whatsoever on the merits of the case. (Rakesh Kainthla) Judge 3rd July, 2025 (saurav pathania)