2026:HHC:38127 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 1550 of 2026 Reserved on: 03.09.2026 Date of Decision: 09.09.2026 Rakesh Kumar ...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 Naveen K. Bhardwaj, Advocate. For the Respondent : Mr Jitender Sharma, Additional Advocate General. Rakesh Kainthla, Judge The petitioner has filed the present petition seeking pre-arrest bail in FIR No. 104 of 2026, dated 13.08.2026, registered at Police Station Bhuntar, District Kullu, H.P., for the commission of offences punishable under Sections 305(b), 324(4) and 351(2) of Bharatiya Nyaya Sanhita (BNS), 2023. 2. It has been asserted that, as per the prosecution, the informant, Jassi and her family members are residing at Parla Bhuntar near Harihar Hospital. They are engaged in the business 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2 2026:HHC:38127 of readymade garments/apparel, and had brought the material worth ₹75,000/- from Delhi for sale at Mangal Market, PatliKuhal. The petitioner entered the informant's house on 03.08.2026 and had a scuffle with the informant and her family members. He took away the informant’s wearing apparel, 5 bundles of cloth and other articles kept in the courtyard. He burnt some of the material in the courtyard on 04.08.2026 and also threatened to burn the informant and her family members alive. The police registered the FIR and investigated the matter. The allegations against the petitioner are false. The petitioner had applied for pre-arrest bail, and his application was ultimately dismissed by the Court of the learned Sessions Judge on the ground that recovery is to be effected from the petitioner. The petitioner was falsely implicated because of a business dispute between the parties. The petitioner would abide by the terms and conditions that the Court may impose. The non-recovery without anything more cannot be a ground to decline pre-arrest bail. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail. 3. The petition is opposed by filing a status report asserting that the informant had brought the articles worth ₹75,000/-. The petitioner trespassed into the premises of the 3 2026:HHC:38127 informant, picked up a quarrel with her and gave her beatings. He took away the articles kept in the courtyard and the wearing apparel of the informant and her family members. He burnt some of the material on 04.08.2026 and threatened to burn the informant and her family members. The police registered the FIR and investigated the matter. The police checked the CCTV footage and found that the petitioner was carrying the articles. He had burnt some articles at some distance from the informant's house, and some articles were taken on the scooter bearing registration No. HP-34A-3566. The petitioner had applied for pre-arrest bail before the learned Sessions Judge, but he failed to join the investigation. Hence, the petition for pre-arrest bail was dismissed. The petitioner has not joined the investigation despite the order of this Court. The recovery is to be effected from the petitioner. The petitioner has criminal antecedents. FIR No. 94 of 2019 and FIR No. 92 of 2024 have been registered against the petitioner, in which the petitioner was fined by AETC Kullu, District Kullu. Hence, the status report. 4. I have heard Mr Naveen K. Bhardwaj, learned counsel for the petitioner and Mr Jitender Sharma, Additional Advocate General for the respondent/State. 4 2026:HHC:38127 5. Mr Naveen K. Bhardwaj, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The allegations in the FIR are inherently improbable. The petitioner would join the investigation and abide by the terms and conditions that the Court may impose. The petitioner cannot be kept behind bars for effecting the recovery. Therefore, he prayed that the present petition be allowed and the petitioner be released on pre-arrest bail. 6. Mr Jitender Sharma, learned Additional Advocate General for the respondent/State, submitted that the police had seized the CCTV footage and found the petitioner committing the theft. There is sufficient material at this stage to connect the petitioner to the commission of the crime. The petitioner has failed to join the investigation despite repeated directions, and his custodial interrogation is necessary for investigating the matter. Hence, 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) 5 2026:HHC:38127 3 SCC (Cri) 509; 2019 SCC OnLine SC 1143 that arrest is a part of the investigation procedure. The power of pre-arrest bail is extraordinary and should be sparingly exercised. 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-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 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 6 2026:HHC:38127 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 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. The presumption of innocence cannot be a reason to grant bail. It was observed at page 501: 7 2026:HHC:38127 “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 are 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 that the court should keep in mind while considering the plea for anticipatory bail. The salutary rule is to balance the cause of 8 2026:HHC:38127 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 has to be decided as per the parameters laid down by the Hon’ble Supreme Court. 13. The status report mentions that the police checked the CCTV footage and found the petitioner carrying five bundles with him on the night of 03/04.08.2026. He was also seen burning some of the bundles at some distance. The police also collected the ash of the burnt bundles. These allegations prima facie show the petitioner's involvement in the commission of the crime. 14. The status report mentions that the petitioner has not joined the investigation despite the orders of the learned Sessions Court and this Court, which shows that the petitioner would not cooperate with the investigation without custodial interrogation. 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-oriented than 9 2026:HHC:38127 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 of the basic and effective methods of crime solving, the liberty of an individual also needs to be balanced out. 16. It was submitted that the petitioner cannot be sent to custody for effecting the recovery. This submission is only stated to be rejected. The recovery of the stolen articles is an important 10 2026:HHC:38127 part of the investigation and cannot be scuttled by obtaining the pre-arrest bail from the Court and thereafter not complying with the orders of the Court. Since the paramount consideration is the fair investigation while granting the pre-arrest bail, and the petitioner has not cooperated with the investigation. Therefore, he cannot be held entitled to pre-arrest bail. 17. In view of the above, the present petition fails and is dismissed. 18. 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 9th September, 2026. (Nikita)