2025:HHC:25618 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 1746 of 2025 Reserved on: 29.07.2025 Date of Decision:01.08.2025. Shawaz Pasha ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner : Mr Hemant Kumar Thakur, Advocate. For the Respondent : Mr. Joginder K. Sharma, Additional Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking pre-arrest bail in FIR No. 10 of 2025 dated 16.05.2025, registered for the commission of offences punishable under Sections 318(4) & 61(2) of the of the Bharatiya Nyaya Sanhita (BNS), 2023 and Section 66D of Information and Technology Act (I.T. Act) at Police Station Southern Range, Shimla, District Shimla, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2025:HHC:25618 2. It has been asserted that the petitioner is apprehending his arrest by the police in connection with the aforesaid F.I.R. As per the F.I.R., fraudulent NEFT and RTGS transactions of ₹ 11 Crores were made from the complainant’s account. The police arrested some persons, and they disclosed the name of the petitioner. The petitioner is innocent, and he was falsely implicated. He belongs to a respectable family in society. He would join the investigation as and when directed to do so and would abide by all the terms and conditions which the Court may impose. Hence, the petition. 3. The petition is opposed by filing a status report asserting that a fraudulent transaction of ₹11,55,56,417/- was detected in an account of H.P. State Co-operative Bank on 11.05.2025 and 12.05.2025, which were bank holidays. The police registered the F.I.R. and found that the account was hacked and a fraudulent transaction of ₹11,55,56,417/- was made. The police found that money was transferred to various Companies. The server of the bank was hacked, and ₹11,55,56,417/- were deposited in the account, which were transferred to multiple accounts in multiple banks. An amount of ₹49,13,799/- was transferred to the account of Dhanshree Souhardh Co-Operative 3 2025:HHC:25618 Private Ltd. (RBL Bank, J.P. Nagar, Bengaluru, Karnataka). Some money was also transferred to Arsura Solution Private Ltd. ₹45,90,454/- was transferred to the account of Dhanshree Souhardh Co-Operative Private Ltd. on 14.05.2025. ₹49,42,649/- was transferred to the account of Dhanshree Souhardh Co- Operative Private Ltd on 12.05.2025, located in Bandan Bank J.P. Nagar. In this manner, an amount of ₹1,93,47,012/- was transferred to three accounts of Dhanshree Souhardh Co-Operative Private Ltd. A total amount of ₹3,14,29,784/- was transferred to Dhanshree Souhardh Co-Operative Private Ltd., Arsura Solutions Private Ltd and Xtreme Festivals Private Limited, from where this money was transferred to seven accounts. The petitioner is also involved in the fraudulent transfer of the money. It was found during investigation that Sylvester Britto and Suresh Babu had made accounts of Dhanshree Souhardh Co-Operative Private Ltd., Arsura Solutions Private Ltd and Xtreme Festivals Private Limited available to the present petitioner. Sylvester Britto and Suresh Babu withdrew ₹20,00,000/- and handed them over to the petitioner. The petitioner has absconded. He was served a notice under Section 35(3) of BNSS to cooperate with the investigation, but he failed to 4 2025:HHC:25618 do so. The police have arrested six persons, out of whom four were released on bail, whereas two are in judicial custody. The petitioner conspired with a Nigerian national, and he obtained the money, which was transferred to the Nigerian national. He is yet to be arrested. Hence, the status report. 4. I have heard Mr. Hemant Kumar Thakur, learned counsel for the petitioner and Mr. Jitender K. Sharma, learned Additional Advocate General, for the respondent/State. 5. Mr. Hemant Kumar Thakur, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. He is willing to cooperate with the investigation and would abide by all the terms and conditions which the Court may impose. Hence, he prayed that the present petition be allowed and the petitioner be released on bail. 6. Mr. Jitender K. Sharma, learned Additional Advocate General for the respondent/State, submitted that the petitioner had helped in the transfer of ₹11,55,56,417/-. The money was subsequently transferred to the account of a Nigerian national. The money was transferred first to the account in H.P. State Co- Operative Bank and thereafter to multiple accounts located at 5 2025:HHC:25618 different places. Ultimately, the money was handed over to the Nigerian national. The police recovered some money, and the rest of the money is yet to be recovered. The involvement of the other accused is yet to be ascertained. The source of the funds is yet to be traced. A thorough investigation is required, considering the huge money involved. The petitioner is a mastermind in the whole episode, and his custodial interrogation is necessary. The police served a notice on him to join the investigation, but he failed to do so. This shows that the investigation cannot be carried out without arresting the petitioner. Therefore, he prayed that the present petition be dismissed. 7. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 8. 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, an arrest is a part of the procedure of the investigation to secure not only the presence of the 6 2025:HHC:25618 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 are considered to decide whether it is a fit case for the grant of anticipatory bail. Grant of anticipatory bail to some extent interferes with 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.” 9. 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 7 2025:HHC:25618 we say that such orders shall be passed in eminently fit cases.” 10. 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.” 11. 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: 8 2025:HHC:25618 “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 circumstances where the court is prima facie of the view that the applicant has been falsely implicated in the crime or the allegations are politically motivated or frivolous. So far as the case at hand is concerned, it cannot be said that any exceptional circumstances have been made out by the petitioner-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 pronouncement 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 apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations. It has also to be kept in mind that for the purpose of granting bail, the legislature has used the words “reasonable grounds for believing” instead of “the evidence” which means the court dealing with the grant of bail can only satisfy 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 expected, 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 9 2025:HHC:25618 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. 12. The present petition is to be decided as per the parameters laid down by the Hon’ble Supreme Court. 13. A perusal of the status report shows that an amount of ₹11,55,56,417/- was transferred to an account of H.P. State Co- operative Bank and thereafter to various accounts on 11.05.2025 and 12.05.2025, which were bank holidays. The police have succeeded in tracing an amount of ₹3,14,29,784/- so far and are continuing the investigation to trace the remaining money. The police also found that the accounts, to which the money was transferred, were made available to the petitioner by the co-accused Suresh Babu and Sylvester Britto. The money was ultimately sent to the Nigerian national after retaining the commission. These allegations show the, prima facie, involvement of the petitioner in the commission of crime. 14. Copy of the notice served upon the petitioner was filed in the Court. It has also been asserted in the status report that the petitioner was asked to join the investigation, but he failed to do so, and he absconded. Therefore, the apprehension 10 2025:HHC:25618 expressed by the police that the petitioner will not join the investigation in case of releasing him on bail and is likely to abscond has some force. It was laid down by the Hon’ble Supreme Court in State of Orissa Versus Mahimanand Mishra (2018) 10 SCC 516 that while considering a bail application, the Court should also look at the possibility of the appearance of accused to face trial. When the accused had absconded and arrested after a lookout circular was issued, he was not entitled to bail. 15. The petitioner is involved in the commission of an economic crime, which is committed after due deliberation. It was held in P Chidambaram (supra) that economic offences are to be treated differently from other offences while considering pre- arrest bail. It was observed: “Economic offences 78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of society. In Directorate of Enforcement v. Ashok Kumar Jain [Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105: 1998 SCC (Cri) 510], it was held that in economic offences, the accused is not entitled to anticipatory bail. xxxxxx 11 2025:HHC:25618 80. Observing that an economic offence is committed with deliberate design with an eye on personal profit regardless of the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal [State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364: 1987 SCC (Cri) 364], it was held as under: (SCC p. 371, para 5) “5. … The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment, upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit, regardless of the consequences to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye, unmindful of the damage done to the national economy and national interest.” 81. Observing that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI [Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439: (2013) 3 SCC (Cri) 552], the Supreme Court held as under: (SCC p. 449, paras 34-35) “34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep- rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing a serious threat to the financial health of the country. 12 2025:HHC:25618 35. While granting bail, the court has to keep in mind the nature of accusations, 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 apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations.” (emphasis supplied) 82. Referring to Dukhishyam Benupani v. Arun Kumar Bajoria [Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52: 1998 SCC (Cri) 261], in Directorate of Enforcement v. Bher Chand Tikaji Bora [Directorate of Enforcement v. Bher Chand Tikaji Bora, (1999) 5 SCC 720: 1999 SCC (Cri) 1045], while hearing an appeal by the Enforcement Directorate against the order [Bherchand Tikaji Bora v. State of Maharashtra, Criminal Application No. 2140 of 1998, decided on 21-7-1998 (Bom)] of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail.” 16. It was submitted on behalf of the State that the custodial interrogation of the petitioner is necessary to unearth the extent of the fraud. 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:- “6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- 13 2025:HHC:25618 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” 17. 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 also be 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.” 14 2025:HHC:25618 18. 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 would elude if the accused knew 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.” 19. Therefore, the petitioner is not entitled to pre-arrest bail on this consideration as well. 20. It was submitted that the co-accused have been released on bail and the petitioner is entitled to bail on the principle of parity. This submission cannot be accepted. The bail orders of the co-accused have not been filed, and it is not known whether their circumstances are similar or not. Further, the petitioner is stated to be the mastermind of the whole episode, to whom the bank accounts were made available and who transferred the money to those accounts is yet to be ascertained. Therefore, he cannot claim parity with the co-accused. His 15 2025:HHC:25618 interrogation is necessary to determine the involvement of the other co-accused, and releasing him on bail will affect the investigation adversely. 21. In view of above, the present petition fails, and the same is dismissed. 22. The observations made heretofore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 01st August,2025 (ravinder)