2024:HHC:16978 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 99 of 2024 Reserved on: 01.03.2025 Date of Decision: 05.03.2025 Sukh Ram ...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 R.K. Gautam, Senior Advocate, Advocate, with M/s Jai Ram Sharma and Sahil Dixit, Advocates. For the complainant : Mr Arvind Sharma, Advocate. For the Respondents : Mr Jitender Sharma, Additional Advocate General, with ASI Arjun Singh, IO, Police Station Khairi, District Chamba, HP. Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking pre-arrest bail. It has been asserted that FIR No. 3 of 2025, dated 7.1.2025, was registered against the petitioner for the commission of offences punishable under Sections 420 and 406 of the Indian Penal Code (IPC) at Police Station Khairi, 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2024:HHC:16978 District Chamba, H.P. The petitioner has not committed any criminal act and has been falsely implicated due to enmity with the superior ofÏcials. The petitioner 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. 2. The petition is opposed by filing a status report, asserting that the informant filed a complaint before the police, asserting that the petitioner was posted as a Branch Manager at Khairi Sub Branch on 27.6.2023. It was found during the inquiries that the petitioner had opened nine gold loan accounts amounting to ₹15.75 lacs in the name of his family members without any documentation. No gold was pledged as collaterals in the account as required under law. The petitioner caused wrongful gain to himself and wrongful loss to the bank. The police registered the FIR and seized the record. The police found that gold loans were approved in the name of the petitioner’s relatives. The petitioner’s mother had expired, but the gold loan account was opened in her name. The amount was returned by the petitioner. Hence, the status report. 3 2024:HHC:16978 3. I have heard Mr R.K. Gautam, learned Senior Counsel assisted by M/s Jai Ram Sharma and Sahil Dixit, Advocates, Mr Arvind Sharma, learned counsel for the informant and Mr Jitender Sharma, learned Additional Advocate General, for respondent-State. 4. Mr. R.K. Gautam, learned Senior Counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The petitioner joined the investigation, and his custodial interrogation is not required. Therefore, he prayed that the present petition be allowed and the petitioner be released on pre-arrest bail. 5. Mr. Arvind Sharma, learned counsel for the informant submitted that the petitioner was posted as Branch Manager. He misused his position to disburse gold loans to his family members contrary to the instructions of the Bank. The nature of the offence is heinous and pre-arrest bail should not be granted to him. He relied upon the judgment of this Court in Tej Pal Singh Vs. State of H.P. 2025:HHC:309 and judgment of Hon’ble Supreme Court in Jagjeet Singh and others Vs. Ashish 4 2024:HHC:16978 Mishra @ Monu and another, Cr. Appeal No. 632 of 2022, decided on 18.4.2022, in support of his submission. 6. Mr. Jitender Sharma, learned Additional Advocate General, for the respondent-State submitted that the petitioner joined the investigation and his interrogation is not required. He prayed that an appropriate order may be passed. 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 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 5 2024:HHC:16978 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 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 6 2024:HHC:16978 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. The status report shows that the petitioner had opened a gold loan account which was closed and the money has been returned to the bank. It was also submitted on behalf of the State that custodial interrogation of the petitioner is not required. Therefore, the petitioner is entitled to be released on bail. 12. Mr. Arvind Sharma, learned counsel for the informant submitted that the offence committed by the petitioner is heinous and a mere deposit of the amount will not wash out the crime committed by the petitioner. This submission is not to be appreciated at this stage because the Court is concerned with the pre-trial detention of the petitioner and the petitioner acting in breach of duties is not sufÏcient to deny the pre-arrest bail to him. 7 2024:HHC:16978 13. The judgments cited on behalf of the informant- Bank in Tej Pal Singh and Jagat Singh (supra) will not help the petitioner. In Tej Pal Singh (supra) the accused was not disclosing about the investment made by him, which justified his pre-trial detention. In Jagjit Singh (supra), the life of a person was lost and the offence was considered to be heinous by the Hon’ble Supreme Court. In the present case, an economic offence was committed and the money has been recovered. Hence, no fruitful purpose would be served by detaining the petitioner in custody. The bail cannot be used to punish a person without conducting a trial. 14. Hence, the present petition is allowed and the order dated 9.1.2025 is made absolute. 15. The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. (Rakesh Kainthla) Judge 5th March, 2025 (Chander)