2026:HHC:31227 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1271 of 2026 Reserved on: 27.07.2026 Date of Decision: 28.7.2026. Vivek Kumar …. Petitioner Versus State of HP …. Respondent Coram Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : M/s Vijender Katoch and Shivanshu Attri, Advocates. For the respondent/State : Mr Jitender K. Sharma, Additional Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition seeking pre-arrest bail in FIR No. 96 of 2026, dated 29.06.2026, registered for the commission of offences punishable under Sections 305 and 331(4) of Bharatiya Nyaya Sanhita (BNS), 2023 at Police Station Dharamshala, District Kangra, H.P. 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:31227 2. It has been asserted that the informant, Dr Anjali Shri Kant, made a complaint of the theft of jewellery from her house between 27.06.2026 and 29.06.2026, when she had gone to her friend's place for a stay. The police arrested Chandan and Anju, who revealed during interrogation that they had sold the stolen jewellery to the petitioner. The petitioner is being apprehended on the statement of the co-accused, which is not permissible. The petitioner is innocent and has nothing to do with the commission of the crime. He would abide by the terms and conditions that the Court may impose. Hence, it was prayed that the present petition be allowed and the petitioner be released on pre-arrest bail. 3. The petition is opposed by filing a status report asserting that the victim had made a complaint to the police on 29.06.2026, complaining of theft in her home. The victim had gone to her friend’s house between 27.06.2026 and 29.06.2026. Her maid informed her about the theft. She reported the matter to the police. The police investigated the matter. The police checked the CCTV footage and found two persons going towards the victim's home in suspicious condition. The police arrested Anju and Chandan, who disclosed during the interrogation that 3 2026:HHC:31227 they had sold the stolen jewellery to the petitioner, Vivek Kumar. The petitioner produced one piece of melted gold and one brick of silver, which were seized by the police. The petitioner had accepted the stolen jewellery knowing fully well that the jewellery was stolen. Some jewellery was recovered pursuant to the disclosure statements made by Anju and Chandan. The petitioner had not joined the investigation despite the receipt of the notice. Hence, the status report. 4. I have heard M/s. Vijender Katoch and Shivanshu Attri, learned counsel for the petitioner and Mr Jitender K. Sharma, learned Additional Advocate General, for respondent/State. 5. Mr Vijender Katoch, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated based on a disclosure statement made by the co-accused, which is inadmissible in evidence. The petitioner cooperated with the police and produced the gold and silver. No recovery is to be effected from the petitioner. No fruitful purpose would be served by detaining the petitioner in custody. Hence, he 4 2026:HHC:31227 prayed that the present petition be allowed and the petitioner be released on bail. 6. Mr Jitender K. Sharma, learned counsel for the respondent/State submitted that the petitioner used to purchase the stolen jewellery from the thieves. He is responsible for the thefts in the area. The petitioner is to be interrogated. The investigation is at the initial stage and releasing the petitioner on bail would compromise the fair trial; therefore, he prayed that the present petition be dismissed. 7. I have given a 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 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- 5 2026:HHC:31227 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 we say that such orders shall be passed in eminently fit cases.” 6 2026:HHC:31227 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. The present petition has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 12. The status report shows that the co-accused Chandan and Anju had disclosed during the interrogation that they had sold the stolen jewellery to the petitioner. The petitioner got recovered a piece of gold and a brick of silver, which was seized by the police. It was laid down by the Hon’ble Supreme Court in Mehboob Ali v. State of Rajasthan, (2016) 14 SCC 640: (2016) 4 SCC 7 2026:HHC:31227 (Cri) 412: 2015 SCC OnLine SC 1043, that the information given by the accused, leading to the discovery of another accused from whom forged currency notes were recovered, is admissible under Section 27 of the Indian Evidence Act. It was observed at page 646: - “15. It is apparent that on the basis of the information furnished by accused Mehboob Ali and Firoz, and other accused, Anju Ali was arrested. The fact that Anju Ali was dealing with forged currency notes was not known to the police. The statements of both the accused have led to the discovery of the fact and arrest of the co-accused, not known to the police. They identified him, and ultimately, statements have led to unearthing the racket of the use of fake currency notes. Thus, the information furnished by the aforesaid accused persons vide information memos is clearly admissible, which has led to the identification and arrest of accused Anju Ali, and as already stated, possession of Anju Ali's fake currency notes had been recovered. As per information furnished by the accused Mehboob and Firoz vide memos Exts. P-41 and P-42, the fact has been discovered by the police as to the involvement of the accused Anju Ali, which was not known to the knowledge of the police. The police were not aware of the accused Anju Ali, as well as the fact that he was dealing with fake currency notes, which were recovered from him. Thus, the statement of the aforesaid accused Mehboob and Firoz is clearly saved by Section 27 of the Evidence Act. The embargo put by Section 27 of the Evidence Act was clearly lifted in the instant case. The statement of the accused persons has led to the discovery of facts proving complicity of the other accused persons, and the entire chain of circumstances clearly makes out that the accused acted in conspiracy, as found by the trial court as well as the High Court. 8 2026:HHC:31227 xxxxxxx 20. Considering the aforesaid dicta, it is apparent that there was a discovery of a fact as per the statement of Mehmood Ali and Mohd. Firoz. The co-accused was nabbed on the basis of an identification made by the accused Mehboob and Firoz. That he was dealing with fake currency notes came to the knowledge of the police through them. Recovery of forged currency notes was also made from Anju Ali. Thus, the aforesaid accused had the knowledge about co-accused Anju Ali, who was nabbed at their instance and based on their identification. These facts were not to the knowledge of the police; hence the statements of the accused persons leading to the discovery of the fact are clearly admissible as per the provisions contained in Section 27 of the Evidence Act, which carves out an exception to the general provisions about inadmissibility of confession made under police custody contained in Sections 25 and 26 of the Evidence Act.” 13. Therefore, the statement made by the co-accused leading to the discovery of the petitioner and recovery of gold and silver would, prima facie, connect him to the commission of the crime. 14. The status report shows that the police had served a notice upon the petitioner, but the petitioner had failed to join the investigation. The investigation is at an initial stage, and the custodial interrogation of the petitioner is necessary for solving the crime. It was laid down by the Hon’ble Supreme Court in State Versus Anil Sharma (1997) 7 SCC 187 that where custodial 9 2026:HHC:31227 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- 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 much 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”. 15. 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 10 2026:HHC:31227 of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out. 16. It was submtited that the co-accused have been released on bail and the petitoner is entitled to bail. This submission cannot be accepted. The co-accused were released on regular bail for which different considerations apply. Hence, the petitoiner cannot seek bail because of release of the co-accused. 17. In view of the above, the petitioner cannot be held entitled to the pre-arrest bail. Hence, the present petition fails and is dismissed. 18. The observation made hereinbefore shall remain confined to the disposal of the instant petition and will have no bearing whatsoever on the merits of the case. (Rakesh Kainthla) 28th July, 2026 Judge (Ravinder)