1 2025:HHC:29200 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP(M) No. 1650 of 2025 Reserved on : 18.8.2025 Decided on : 29.8.2025 Manju Dayal …Applicant Versus State of H.P. …Respondent ___________________________________________ Coram Hon’ble Mr. Justice Virender Singh, Judge Whether approved for reporting? ________________________________________________ For the Applicant : Applicant in person with Mr. Nitin Soni and Mr. Sunil Gautam, Advocates. For the Respondent : Mr. Varun Chandel, Mr. Mohinder Zharaick and Mr. H.S. Rawat, Additional Advocates General. Virender Singh, Judge The applicant has filed the present application, under Section 482 of Bharatiya Nagarik Suraksha Sanhita (hereinafter referred to as ‘the BNSS’) in case FIR No. 23 of 2025, dated 5.4.2025, registered under Sections 305 and 331(3) of the Bharatiya Nyaya 2 2025:HHC:29200 Sanhita (hereinafter referred to as ‘the BNS”), with Police Station, Sainj, District Kullu, H.P. 2. By way of the present application, the applicant has sought the indulgence of this Court to direct the Investigating Officer/Police, to release her on bail, in the event of her arrest, in the above-mentioned case, as, she is apprehending her arrest, in the said case. 3. According to the applicant, she is innocent person and has falsely been implicated in this case. 4. According to the applicant, she is owner of the immovable property situated in Sainj and she has preferred a Civil Suit for permanent Prohibitory Injunction, against one Hem Singh, in respect of Khasra No 3546, situated in Phati Railla Kothi Bhallan, Sub Tehsil Sainj, District Kullu, which is registered as C.S. No. 65 of 2018, titled as ‘Manju versus Hem Singh’, pending in the Court of learned Civil Judge, Kullu. 3 2025:HHC:29200 5. Apart from this, it has been pleaded by the applicant that no such incident, as mentioned in the FIR, has ever taken place. 6. According to the applicant, she is from a respectable family and having deep roots in the society and shall remain available for the trial. 7. Elaborating her stand, it has been pleaded that on 13.2.2025, an FIR No. 10 of 2025 under Section 329 (4) of the BNS was registered, in respect of the property aforesaid and allegations were made that Jeevan Lal, Krishna, Fateh Ram and Dorje had taken a room on rent from one Hem Singh and the applicant entered into the room and threw their luggage. On 18.2.2025, Fateh Ram, Jeevan Lal and Krishan Chand filed affidavits that they had only gone to the Police Station for getting their luggage and they did not know that the building belonged to her. The applicant is stated to have only put her lock on the said room. 8. On the basis of above facts, Mr. Nitin Soni and Mr. Sunil Gautam, Advocates, appearing for the 4 2025:HHC:29200 applicant, have given certain undertakings, on behalf of the applicant, for which, she is ready to abide by, in case, directions are issued to the Police/I.O., under Section 482 of the BNSS. 9. On the basis of above facts, applicant has sought the relief, as claimed in the present bail application. 10. When, put to notice, the Police has filed the status report, on 14.7.2025, disclosing therein that on 5.4.2025, complainant Hari Ram moved a complaint, before the Police, disclosing therein, that he had taken a shop at Sainj, on rent, about one year ago. The said shop is being run by his son Aman Kumar. In the shop, there were one Plotter machine, L.E.D. Laptop, Bass tube and tool kit in the shop, as his son Aman Kumar used to do the repair work of vehicles. 10.1 According to the complainant, on 5.4.2025, at about 7:29 p.m., Manju Dayal had broken the lock of the shop and stolen the above articles. As such, a prayer has been made to take action against the applicant. 5 2025:HHC:29200 10.2 On the basis of above facts, FIR was registered. Spot was visited and statements of witnesses were recorded. CCTV footage was obtained. During investigation, relevant papers with regard to the ownership of shop and land were also obtained. 10.3 On the basis of above facts, interim protection was granted to the applicant and the matter was adjourned for 21.7.2025. 10.4 On 21.7.2025, the Police filed the status report, disclosing therein, that recovery of plotter machine, L.E.D.Laptop, Bass Tube and tool kit of the vehicles is yet to be recovered. Thereafter, the matter was adjourned for 28.7.2025, when, the Police filed the fresh status report, disclosing therein, that the applicant has joined the investigation on 25.7.2025, 26.7.2025, however, she has denied that she has stolen the articles. 10.5 It is the further case of the Police that during investigation, it was found that the applicant is a very clever person and not cooperating with the investigation and submitted the false facts. Re-asserting the stand 6 2025:HHC:29200 that recovery is yet to be effected, a prayer has been made to dismiss the application. 10.6 Thereafter, the matter was adjourned for 4.8.2025. On that day, fresh status report has been filed, reiterating the earlier stand. 10.7 The matter was again adjourned for 11.8.2025, on which date, fresh status report has been filed, mentioning therein, that the applicant has joined the investigation on 25.7.2025, 26.7.2025, 6.8.2025, 8.8.2025 and 9.8.2025, however, according to the Police, she is not cooperating with the investigation and submitting the false information. Due to her non- cooperative attitude, as per the stand of the Police, recovery of the aforesaid articles could not be effected. 10.8 On the basis of above facts, a prayer has been made to dismiss the application. 11. The applicant is permanent resident of District Kullu, as such, it cannot be apprehended that in case, the interim order, dated 14.7.2025 is made absolute, she may not be available for trial. 7 2025:HHC:29200 12. So far as, the arguments of learned Addl. A.G., qua the fact that applicant is not cooperating with the investigation, is concerned, confessing her guilt and not cooperating with the investigation, are two different things, as applicant cannot be compelled to be the witness, against herself. 13. The status reports, which have been filed, in this case, are totally silent, as to how the custodial interrogation of the applicant, is required in this case. 14. Even otherwise, in view of the decision of the Hon’ble Supreme Court in Gurbaksh Singh Sibbia & Others versus State of Punjab, (1980) 2 Supreme Court Cases 565, a person, having the protection under Section 438 Cr.PC (482 of the BNS), is deemed to have surrendered himself, if a discovery is to be made. Relevant paragraph 43 of the judgment, is reproduced, as under:- 43. During the last couple of years this Court, while dealing with appeals against orders passed by various High Courts, has granted anticipatory bail to many a person by imposing conditions set out in Section 438(2)(i), (ii) and (iii). The Court has, in addition, directed in most of those cases that (a) the 8 2025:HHC:29200 applicant should surrender himself to the police for a brief period if a discovery is to be made under Section 27 of the Evidence Act or that he should be deemed to have surrendered himself if such a discovery is to be made. In certain exceptional cases, the Court has, in view of the material placed before it, directed that the order of anticipatory bail will remain in operation only for a week or so until after the filing of the F.I.R. in respect of matters covered by the order. These orders, on the whole, have worked satisfactorily, causing the least inconvenience to the individuals concerned and least interference with the investigational rights of the police. The Court has attempted through those orders to strike a balance between the individual's right to personal freedom and the investigational rights of the police. The appellants who were refused anticipatory bail by various courts have long since been released by this Court under Section 438(1) of the Code. 15. So far as the non-cooperation of the applicant, in the investigation is concerned, if the facts and circumstances of the present case are seen in the light of the decision of the Hon’ble Supreme Court in Tusharbhai Rajnikantbhai Shah versus Kamal Dayani & Others, (2025) 1 Supreme Court Cases 753, the applicant is entitled to the relief, as claimed, in the application. Relevant paragraph 43 of judgment, are reproduced, as under:- “43. We are of the firm opinion that non-cooperation by the accused is one matter and the accused refusing to 9 2025:HHC:29200 confess to the crime is another. There would be no obligation upon the accused that on being interrogated, he must confess to the crime and only thereafter, would the Investigating Officer be satisfied that the accused has cooperated with the investigation. As a matter of fact, any confession made by the accused before a police officer is inadmissible in evidence and cannot even form a part of the record.” 16. Similar view has again reiterated by Hon’ble Supreme Court in case titled as Sushila Aggarwal and others versus State (NCT of Delhi) and another, (2020) 5 Supreme Court Cases 1. Relevant paragraph 92.8 is reproduced as under:- “92.8. The observations in Sibbia regarding “limited custody” or “deemed custody” to facilitate the requirements of the investigative authority, would be sufficient for the purpose of fulfilling the provisions of Section 27, in the event of recovery of an article, or discovery of a fact, which is relatable to a statement made during such event (i.e. deemed custody). In such event, there is no question (or necessity) of asking the accused to separately surrender and seek regular bail. Sibbia (supra) had observed that “19...if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail by invoking the 10 2025:HHC:29200 principle stated by this Court in State of H.P. v. Deoman Upadhyaya.” 17. In the status reports, the prayer, as made in the bail application, has been opposed, mainly on the ground that applicant is not getting the recovery effected. The alleged refusal/non-cooperation of the applicant, to the considered opinion of this Court, could not be the ground for dismissal of the application, as no one can be compelled to be the witness against himself, as the same is violative of Article 20(3) of the Constitution of India. 18. Considering all these facts, the interim order dated 14.7.2025, passed by this Court, is hereby made absolute. Therefore, it is ordered that the applicant be released on bail, in the event of her arrest, in case FIR No. 23 of 2025, dated 5.4.2025, registered under Sections 305 and 331(3) of the Bharatiya Nyaya Sanhita, with Police Station, Sainj, District Kullu, H.P. on her furnishing personal bond, in the sum of 50,000/-, with one surety of the like ₹ amount, to the satisfaction of the Investigating Officer. This order, however, shall be subject to the following conditions : 11 2025:HHC:29200 a) That the applicant will join the investigation of the case, as and when, called for, by the Investigating Officer, in accordance with law; b) That the applicant will not leave India, without prior permission of the Court; c) That the applicant will not, directly or indirectly, make any inducement, threat or promise to any person, acquainted with the facts of the case, so as to dissuade him/her from disclosing such facts to the Investigating Officer or the Court; and d) That the applicant shall regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so seek exemption from appearance by filing appropriate application. 19. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present application. 20. It is made clear that the respondent-State is at liberty to move an appropriate application, in case, any of the bail conditions, is found violated by the applicant. (Virender Singh) Judge August 29, 2025 Kalpana 12 2025:HHC:29200