The petitioner sought pre-arrest bail in an FIR registered for cheating (Section 420 IPC). The court found prima facie involvement as funds were transferred through the petitioner's account. Citing precedents on economic offences and the need for custodial interrogation, the court declined to grant pre-arrest bail.
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Neutral Citation No. ( 2024:HHC:7959 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 1668 of 2024 Reserved on: 06.08.2024 Date of Decision: 05th September, 2024
Aakash Yadav
....Petitioner
Versus
State of Himachal Pradesh
....Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No
| For the Petitioner | : Ms. Adv |
Madhurika Sekhon Verma, ocate. |
|---|---|---|
| For the Respondent | : Mr. Adv |
Lokender Kutlehria, Additional ocate General. |
Rakesh Kainthla, Judge
The petitioner has filed the present petition for seeking pre-arrest bail. It has been asserted that FIR No.14 of 2023, dated 25.08.2023, has been registered against the petitioner for the commission of an offence punishable under Section 420 of IPC at Police Station Cyber Crime, Central Range, Mandi, District Mandi, H.P. The petitioner apprehends his arrest at any time. The informant made a complaint to the Cyber Police Station, Mandi stating that one Elizabeth Edirion became his Facebook friend. One day, she disclosed
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to him that she was coming to Delhi from London. She sent a copy of the flight tickets to the informant. He received a call on 18.07.2023 at 10:00 am from her that she had reached Delhi airport and she should be picked up. She also disclosed that she had a draft of one million pounds, which was caught by the Customs Department. She required money to get it released. She demanded ₹10,55,500/- by sending one Email and ₹34,79,000/- towards the payment of Income Tax. The informant sent a total amount of ₹17,07,976/- as per her directions. The police registered the FIR and conducted the investigation. As per the police version, the petitioner’s account was used by said Elizabeth Edirion for depositing ₹2,00,000/-. The main accused had cheated the petitioner by asking him to open the account to help the main accused to achieve his target. The petitioner filed a bail application before learned Additional Sessions Judge-I, Mandi, which was dismissed on the ground that ₹2,00,000/- was deposited in the petitioner’s account. The petitioner is a young person, who is pursuing his graduation. His entire career would be marred by sending him inside the jail. The petitioner joined the investigation when he remained on bail. He belongs to a reputed family and is a permanent resident of Delhi. There is no likelihood of his absconding. He would abide by all
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the terms and conditions, which the Court may impose. Hence, the petition.
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offence is serious and involves financial fraud. The petitioner is not revealing the details sought from him and his custodial interrogation is necessary. Hence, he prayed that the present petition be dismissed.
“69. 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. It was held in P Chidambaram (supra) that economic
offences are to be treated differently from other offences. It was observed:
Economic offences
78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of society. In Directorate of Enforcement v. Ashok Kumar Jain [ Directorate of Enforcement v. Ashok Kumar Jain , (1998) 2 SCC 105: 1998 SCC (Cri) 510] , it was held that in economic offences, the accused is not entitled to anticipatory bail.
xxxxxx
80. Observing that economic offence is committed with deliberate design with an eye on personal profit regardless of the consequence to the community, in State of Gujarat v. Mohanlal Jitamalji Porwal [State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364: 1987 SCC (Cri) 364] , it was held as under: (SCC p. 371, para 5)
“ 5 . … The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest.”
81. Observing that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail, in Y.S. Jagan Mohan Reddy v. CBI [Y.S. Jagan Mohan
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Reddy v. CBI, (2013) 7 SCC 439: (2013) 3 SCC (Cri) 552] , the Supreme Court held as under: (SCC p. 449, paras 34-35)
“ 34 . Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing a serious threat to the financial health of the country.
35 . While granting bail, the court has to keep in mind the nature of accusations, 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.” (emphasis supplied)
82. Referring to Dukhishyam Benupani v. Arun Kumar Bajoria [Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52: 1998 SCC (Cri) 261 ], in Directorate of Enforcement v. Bher Chand Tikaji Bora [Directorate of Enforcement v. Bher Chand Tikaji Bora, (1999) 5 SCC 720: 1999 SCC (Cri) 1045] , while hearing an appeal by the Enforcement Directorate against the order [ Bherchand Tikaji Bora v. State of Maharashtra, Criminal Application No. 2140 of 1998, decided on 21-7-1998 (Bom) ] of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail.
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
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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 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.”
was transferred to the petitioner’s account, which was transferred to
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some other account, therefore, prima facie involvement of the petitioner is established at this stage.
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Such an offence is required to be investigated to restore the confidence of the people in the financial system.
“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
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disinterring offences would not conduct themselves as offender”
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 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.”
arrest bail may hamper the investigations. It was observed:
“83. Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation. Having regard to the materials said to have been collected by the respondent Enforcement Directorate and considering the stage of the investigation, we are of the view that it is not a fit case to grant anticipatory bail.”
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concession of pre-arrest bail. Hence, the present petition fails and the same is dismissed.
to the disposal of the petition and will have no bearing, whatsoever,
on the merits of the case.
(Rakesh Kainthla) Judge
5th September, 2024
(Saurav pathania )
Colour shows how this judgement treated each authority
P. Chidambaram v. Directorate of EnforcementRelied on¶30
P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24 : (2019) 3 SCC (Cri) 509: 2019 SCC OnLine SC 1143 · Who else cites this
Directorate of Enforcement v. Ashok Kumar JainReferred¶37
Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105: 1998 SCC (Cri) 510 · Who else cites this
State of Gujarat v. Mohanlal Jitamalji PorwalReferred¶39
State of Gujarat v. Mohanlal Jitamalji Porwal, (1987) 2 SCC 364: 1987 SCC (Cri) 364 · Who else cites this
Y.S. Jagan Mohan Reddy v. CBIReferred¶44
Y.S. Jagan Mohan Reddy v. CBI, (2013) 7 SCC 439: (2013) 3 SCC (Cri) 552 · Who else cites this
Dukhishyam Benupani v. Arun Kumar BajoriaReferred¶47
Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52: 1998 SCC (Cri) 261 · Who else cites this
Directorate of Enforcement v. Bher Chand Tikaji BoraReferred¶47
Directorate of Enforcement v. Bher Chand Tikaji Bora, (1999) 5 SCC 720: 1999 SCC (Cri) 1045 · Who else cites this
Srikant Upadhyay v. State of BiharRelied on¶49
Srikant Upadhyay v. State of Bihar, 2024 SCC OnLine SC 282 · Who else cites this
Pratibha Manchanda v. State of HaryanaRelied on¶54
Pratibha Manchanda v. State of Haryana, (2023) 8 SCC 181: 2023 SCC OnLine SC 785 · Who else cites this
State Versus Anil SharmaRelied on¶67
State Versus Anil Sharma (1997) 7 SCC 187 · Who else cites this
Mukesh Khurana v. State (NCT of Delhi)Referred¶72
Mukesh Khurana v. State (NCT of Delhi), 2022 SCC OnLine Del 1032 · Who else cites this
2 provisions across 2 enactments
Aakash Yadav
State of Himachal Pradesh
Rakesh Kainthla
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
