Anticipatory bail application by a government employee accused under IPC forgery and cheating provisions and the Prevention of Corruption Act for forging a drilling machinery registration certificate. The court found prima facie involvement based on witness statement and RFSL report and held custodial interrogation necessary.
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Neutral Citation No. ( 2024:HHC:4419 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MPM No.1251 of 2024 Reserved 28.06.2024 Date of Decision: 04th July, 2024.
Lekh Raj Sharma
....Petitioner
Versus
State of Himachal Pradesh
....Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No.
For the Petitioner : Mr. Tara Singh Chauhan, Advocate. For the Respondent/ : Mr. Lokender Kutlehria, Additional State Advocate General.
Rakesh Kainthla,Judge
The petitioner has filed the present petition seeking his pre-arrest bail. It has been asserted that an FIR No. 5 of 2023 dated 5.07.202, has been registered against the petitioner for the commission of offences punishable under Sections 418, 420, 467, 468 and 471 of the Indian Penal Code and Section 7 of Prevention of Corruption Act, at Police Station State Vigilance and AntiCorruption Bureau, Dharamshala, District Kangra, H.P. Surinder Kumar Soni and Dalip Kumar were working as Contractors in the
Whether reporters of the local papers may be allowed to see the judgment? Yes
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name and style of M/s Shree Sai Borewell Company. Subsequently, they got separated. Dalip Kumar obtained a registration certificate for Drilling Machinery, which was found to be forged. The FIR was registered at the instance of Anil Kumar. It was found that Dalip Kumar had a fake certificate of registration. The petitioner is not involved in the commission of the aforesaid offence. As per the prosecution, the petitioner was working as Senior Assistant in the Office of Member Secretary, Himachal Pradesh Ground Water Authority (HPGWA)-cum-Superintending Engineer, P&I-II Jal Shakti Vibhag, Shimla in the year 2018.The petitioner is a government employee and is a permanent resident of District Mandi, H.P. He owns his property and has deep roots in the society. He does not have any criminal antecedents. The petitioner would abide by all the terms and conditions, which the Court may impose. Hence, the petition.
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investigation and found that the present petitioner was posted as Senior Assistant in the office of Member Secretary, Himachal Pradesh Ground Water Authority-cum-Superintending Engineer, P&I-II Jal Shakti Vibhag, Jal Bhawan, Shimla. He had forged the certificate by using the official seal. Surinder Kumar Soni and Dalip Kumar Thakur worked together from 2015 till the year 2019, but their relationship deteriorated in 2019. The certificate was issued in the name of Surinder Kumar Soni on 24.09.2015 and a separate license was issued in the name of Dalip Kumar in the year 2019. The petitioner was known to Dalip Kumar and he had handed over the documents to the petitioner for preparing the forged certificate. The petitioner handed over the certificate, which had the official stamps as per the report of the RFSL Dharamshala, HP. The petitioner also visited IPH Rest House Palampur from 19.02.2020 to 20.02.2020 and 28.02.2020 to 29.02.2020. Signatures of the petitioner are to be obtained. Persons associated with the petitioner are to be interrogated and it is to be found out how many certificates have been forged by the petitioner, for which the custodial interrogation is required. Hence, it was prayed that the petition be dismissed.
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for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State
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involved in the forgery. The details of the other documents forged by the petitioner are also to be ascertained. Hence, it was prayed that the present petition be dismissed.
“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 when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.”
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8. 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.”
(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
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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.”
who specifically stated that he was in touch with the present petitioner as the present petitioner had prepared the certificate previously. He handed over the documents to the petitioner and the petitioner handed over the certificate to him. This statement prima facie shows the involvement of the petitioner in the forgery.
had handed over the documents to the petitioner and the petitioner had handed over the certificate to him. It is undisputed that the petitioner was posted in the office of Member Secretary which used to issue the certificates in its normal course and there is nothing unusual in the handing over of the documents to him. There is nothing on record to show that Dalip Kumar was aware of the fact that the certificate was forged. The testimony of Dalip
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Kumar is duly corroborated by the entries recorded in the IPH guest house wherein the petitioner had stayed
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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 of disinterring offences would not conduct themselves as offender”
Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032 wherein it was observed:
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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.”
reiterate the well-known principles for the grant of bail, which have already been considered by the Hon’ble Supreme Court in the judgments cited above. Hence, it is not necessary to refer to each judgment.
04th July, 2024 (Ravinder)
(Rakesh Kainthla) Judge
1 issue framed by the court
Whether pre-arrest bail should be granted to a government servant accused of forging an official registration certificate where custodial interrogation is sought.
Colour shows how this judgement treated each authority
P. Chidambaram v. CBIReferred¶4
P. Chidambaram v. CBI, (2020) 13 SCC 337 · Who else cites this
P. Chidambaram v. Directorate of EnforcementRelied on¶7
P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 · Who else cites this
Prasanta Kumar Sarkar v. Ashis ChatterjeeReferred¶4
Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 · Who else cites this
Kalyan Chandra Sarkar v. Rajesh RanjanReferred¶4
Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 · Who else cites this
Srikant Upadhyay v. State of BiharRelied on¶8
Srikant Upadhyay v. State of Bihar, 2024 SCC OnLine SC 282 · Who else cites this
Pratibha Manchanda v. State of HaryanaRelied on¶9
Pratibha Manchanda v. State of Haryana, (2023) 8 SCC 181: 2023 SCC OnLine SC 785 · Who else cites this
State Versus Anil SharmaRelied on¶13
State Versus Anil Sharma (1997) 7 SCC 187 · Who else cites this
Mukesh Khurana v. State (NCT of Delhi)Relied on¶14
Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032 · Who else cites this
3 provisions across 3 enactments
Lekh Raj Sharma
State of Himachal Pradesh
Rakesh Kainthla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
