Dismissed

Pranav Upadhyay v. State of Hp

Himachal Pradesh HC6 Mar 2024CRMPM/101/2024

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh rejected a petition for pre-arrest bail filed under Section 438 Cr.P.C. The Court relied on the necessity of custodial interrogation and stated that the petition fails as the investigation is ongoing with material connecting the petitioner to the alleged theft.

What did the court decide?

Petition for pre-arrest bail dismissed. Notice for misleading the Court regarding the petitioner's investigation history is discharged.

Pranav Upadhyay Vs State of Hp — Anticipatory Bail | Himachal Pradesh HC (2024)

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP (M) No. 101 of 2024 Reserved on: 27.02.2024 Date of Decision: 06.03.2024

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Pranav Upddhayay ...Petitioner

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Versus

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State of Himachal Pradesh ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No

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For the Petitioner : Mr. Adarsh K. Vashishta and Ms. Priya Sharma, Advocates. For the Respondent : Mr. Jitender Sharma, Additional Advocate General with SI/SHO Nazar Singh & HC Kultar Singh No. 101, PS Baijnath, District Kangra, H.P.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for seeking pre-arrest bail. It has been asserted that the petitioner is working

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as a Contractor in Jal Shakti Vibhag, Government of H.P, District Kangra, H.P.

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An FIR No.240 of 2023 dated 28.12.2023 has been

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registered at Police Station Baijnath for the commission of an

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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offence punishable under Section 379 read with Section 34 of IPC. The FIR is an afterthought and the petitioner is not involved in the commission of the offence. The name of the petitioner has not been mentioned in the FIR. The pipes stated to have been stolen were lying on the roadside for more than one year. Some pipes have been misplaced and false allegations have been made against the petitioner. The petitioner apprehends his arrest. He would abide by all the terms and conditions, which may be imposed by the Court. Hence, the petition.

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The petition is opposed by filing a status report asserting that the informant-Pawan Kumar, J.E., Jal Shakti Vibhag, Paprola made a complaint that three pipes were kept on the way leading to Majherna, Shani Dev Temple. Five pipes were kept near the Majherna road bridge, which were stolen on 23.12.2023. The police registered the FIR and conducted the investigation. Aman Kumar, JCB Operator, made a statement on 29.12.2023 that these pipes were kept by him at the instance of the present petitioner. The police seized the JCB. Another complaint was made by the Assistant Engineer regarding the theft of 10 pipes of 450-meter diameter and 2 pipes of 6-meter diameter. 20 pipes of 450 diameter worth ₹ 11,76,000/-, were stolen. One pipe was recovered

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by the Police. The petitioner had talked to the owner and the operator of the JCB as per the call detail record. The petitioner is not getting the pipes recovered and is influencing the witnesses. Aman Kumar and Rahul Kumar have stated that the petitioner had asked them to remove the pipes. The petitioner is not disclosing the whereabouts of the pipe; therefore, it was prayed that the present petition be dismissed.

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I have heard Mr Adarsh K. Vashishta & Ms Priya Sharma, learned counsel for the petitioner and Mr Jitender Sharma, learned Additional Advocate General, for the respondent/State.

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Mr Adarsh K. Vashishta, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The pipes were misplaced by the employees of Jal Shakti Vibhag and they had falsely implicated the petitioner to save themselves. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State submitted that the JCB Operator and the owner disclosed during the investigation that the

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petitioner had asked them to remove the pipes. This shows the involvement of the petitioner. The petitioner did not disclose the place where the pipes were kept by him. The investigation is continuing and custodial interrogation of the petitioner is required; therefore, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions at the bar and have gone through the records carefully.

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It was laid down by the Hon’ble Supreme Court in P. Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that

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the power of pre-arrest is extraordinary and should be exercised sparingly. It was observed:

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“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 as a matter of rule and it has to be granted only

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when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.”

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The status report clearly shows that Aman Kumar and

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Rahul Kumar have disclosed that the petitioner had asked them to remove the pipes; therefore, prima facie, the police have collected sufficient material to connect the petitioner with the commission of the crime. The pipes are yet to be recovered and the investigation is at the initial stage. It was laid down by 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:-

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“6. We find force in the submission of the CBI that custodial interrogation is qualitatively more 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 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

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of disinterring offences would not conduct themselves as offenders.”

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A similar view was taken by the Delhi High Court in

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Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032

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wherein it was observed:

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“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 be also 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.”

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It was submitted that the petitioner cannot be

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compelled to be a witness against himself. There can be no dispute with this proposition of law; however, it does not apply to the present case. The recovery of the stolen property cannot be equated to compelling a person to be a witness against himself, especially when there is sufficient material to show that the property was moved at the instance of the petitioner. Therefore, this submission will not assist the petitioner.

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It was further submitted that the pipes were huge and could not have been removed by the petitioner alone. This is a matter to be investigated. As already stated, the investigation is

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continuing and the role of the petitioner and other persons is yet to be determined. Therefore, the bail cannot be granted on the ground that the pipes could not have been removed by the petitioner.

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The police had filed a status report on 08.02.2024, in which, it was pleaded that the petitioner had not joined the investigation since 23.01.2024, which was incorrect because the petitioner had not only joined on 23.01.2024 but his blood samples were taken on 24.01.2024. Hence, a notice was issued to the police to show cause as to why the proceedings for misleading the Court may not be initiated against the SHO.

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A reply has been filed asserting that the investigation was initially handed over to SI-Raj Kumar who filed a status report on 19.01.2024 stating that the petitioner had not joined the investigation. The Investigating Officer-Raj Kumar was about to retire and the investigation was handed over to HC Kultar Singh. The report was prepared after editing the earlier report and it was wrongly written that the petitioner had not joined the investigation after 23.01.2024. It resulted due to the copy-paste. There was no intention to mislead the Court; hence, it was prayed that the notice be discharged.

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It was laid down by the Hon’ble Supreme Court in Kusha Duruka v. State of Odisha, 2024 SCC OnLine SC 56 , that there is a tendency on the part of the litigants to secure the orders by misleading the Courts and such a tendency should be seriously viewed. However, in the present case, the explanation that the error occurred in the process of copy paste appears to be plausible especially when the record was produced before the Court. Hence, the explanation is accepted and the notice is discharged, however, it is hoped that the Police will be careful while submitting the status report before the Court because the Courts act on such status reports and any mistake in the same can adversely affect the criminal administration of justice.

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In view of the above, the present petition fails and the same is dismissed.

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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.

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3^rd March, 2024 (saurav pathania)

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( Rakesh Kainthla) Judge

Pranav Upadhyay v. State of Hp

Case brief

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Pranav Upadhyay v. State of Hp

Case brief

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