Three petitions for pre-arrest bail under Section 438 Cr.P.C. arising from an FIR for attempted murder and arms offenses were dismissed. The court held bail inappropriate as weapons remain unrecovered and custodial interrogation is necessary for investigation.
Petitions for pre-arrest bail were dismissed; the petitioners are not entitled to bail.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MPM Nos.1707, 1708 & 1709 of 2023 Reserved on: 10.11.2023 Date of Decision: 04.12.2023
1. Cr.MPM No.1707 of 2023 Punit Kumar ... petitioner Versus State of H.P ....Respondent …………………………………………………………………………………………………… 2. Cr.MPM No.1708 of 2023 Satish Kumar ... petitioner Versus State of H.P ....Respondent ……………………………………………………………………………………………………. 3. Cr.MPM No.1709 of 2023 Krishan Kumar ... petitioner Versus State of H.P ....Respondent Coram Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?1 No For the petitioner : Mr. N.S. Chandel, Sr. Advocate with Mr. Vinod K. Gupta & Mr. Rajesh Verma, Advocates in all the petitions. : For the Respondent Mr Prashant Sen, Deputy Advocate General with ASI Vijay Pal Singh, Incharge, Police Post Jhoghon, P.S. Nalagarh, District Solan, H.P. in all the petitions.
Rakesh Kainthla, Judge
The petitioners have filed three separate petitions seeking pre-arrest bail in FIR No. 189/2023 dated 05.07.2023 registered at Police Station Nalagarh, District Solan for the
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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commission of offences punishable under Sections 307, 323, 506 and 120B of IPC and Section 25 of Arms Act. Since these petitions have arisen out of the same FIR; therefore, they are being taken up together for convenience.
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could not find them. It was found after the investigation that Krishan Kumar and Satish Kumar had attacked the informant and Dinesh Kumar with unlicensed weapons. They had also threatened them to do away with their lives. The petitioners joined the investigation but did not produce the pistol, bullets or the empty shells. As per the report of the analysis, the evidence of gunshot was found and the range of firing was distant. It is yet to be ascertained from where the pistol and the bullets were purchased. Therefore, it was prayed that the present petitions be dismissed.
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therefore, he prayed that the present petitions be allowed and petitioners be released on pre-arrest bail.
“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
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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 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.”
fired on the JCB and the informant, is duly corroborated by the report of the SFSL, Junga. The fact that the informant party was involved in the commission of the offences earlier does not give any licence to the petitioners to shoot at them. They cannot take the law into their own hands. The police found that the incident had occurred on the Government land. There is no evidence that the informant party had trespassed into the land of the petitioner. Merely because the petitioners own the land in the area cannot lead to an inference that the incident had taken place in their land.
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injury; otherwise, the petitioners had made every effort to kill them.
“6. We find force in the submission of the CBI that custodial is more interrogation qualitatively elicitation-orientated 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 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 responsibly
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conduct themselves and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.”
not entitled to pre-arrest bail. Consequently, the present petition fails and the same is dismissed.
confined to the disposal of the petitions and will have no bearing, whatsoever, on the case's merits.
( Rakesh Kainthla)
Judge
(saurav pathania)
2 issues framed by the court
Whether pre-arrest bail should be granted given the need for custodial interrogation and the serious nature of accusations involving unlicensed weapons.
Whether the right to own land provides immunity from prosecution when shooting occurs on disputed or government land.
Colour shows how this judgement treated each authority
P. Chidambaram vs. Directorate of EnforcementApplied¶18
P. Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 · Who else cites this
State Versus Anil SharmaApplied¶27
State Versus Anil Sharma (1997) 7 SCC 187 · Who else cites this
3 provisions across 3 enactments
Punit Kumar
Satish Kumar
Krishan Kumar
State of H.P.
Rakesh Kainthla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
