Santosh Vs State of Hp

The petitioner has filed the present petition for seeking pre-arrest bail in FIR No. 127 of 2025, dated 12.9.2025, registered at Police Station Dhalli, District Shimla, H.P., for the commission of an offence punishable under Section 318 of Bhartiya Nyaya Sanhita, 2023 (BNS) corresponding to Section 420 of IPC.

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

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It has been asserted that the petitioner was falsely implicated in the aforesaid FIR. She belongs to the scheduled caste category and has passed the 5^th class. Her husband expired on 7.3.2016. She applied for a house under the Homeless Scheme of Ashiana-II on 17.5.2017 and the house was allotted to her. Her previous house was in a dilapidated condition. A Below Poverty Line (BPL) Certificate was also annexed, which was prepared before the death of the petitioner’s husband. It was reissued on 15.12.2017 without the petitioner’s consent. The petitioner had never applied for reissuance of the certificate. A complaint was filed by Richa Sharma against the petitioner, asserting that the petitioner had obtained the house by submitting false documents. The petitioner had earlier applied for pre-arrest bail, but the application was dismissed by the learned Additional Sessions Judge. Hence, the present petition.

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Copy of FIR (Annexure P-6) shows that the house was allotted to the petitioner, but subsequently an inquiry was conducted, which revealed that the petitioner was a permanent Government servant and had produced a false BPL Certificate. A notice was served upon her to vacate the house, but she failed to

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vacate it. The police registered the FIR and investigated the matter.

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I have heard Ms Anu Tuli Azta, learned counsel for the petitioner and Mr Jitender K. Sharma, learned Additional Advocate General, for the respondent-State.

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Ms Anu Tuli Azta, learned counsel for the petitioner, submitted that the petitioner is innocent and she was falsely implicated. She had never applied for re-issuance of the BPL certificate, and it was reissued without her consent. The custodial interrogation of the petitioner is not required. Therefore, she prayed that the present petition be allowed and the petitioner be released on pre-arrest bail.

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Mr Jitender K. Sharma, learned Additional Advocate General, for the respondent-State, submitted that the petitioner had made a false declaration that she belonged to a BPL family. Therefore, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made 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 v. Directorate of Enforcement, (2019) 9 SCC 24: (2019)

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3 SCC (Cri) 509: 2019 SCC OnLine SC 1143 that the power of pre-

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arrest bail is extraordinary and should be exercised sparingly. It was observed:

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“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 prearrest 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.”

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This position was reiterated in Srikant Upadhyay v.

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State of Bihar, 2024 SCC OnLine SC 282, wherein it was held:

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“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

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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.”

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It was held in Pratibha Manchanda v. State of Haryana,

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(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:

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“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.”

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It was held in Devinder Kumar Bansal v. State of Punjab ,

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(2025) 4 SCC 493: 2025 SCC OnLine SC 488 that pre-arrest bail can

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be granted in exceptional circumstances where the Court is of the view that the petitioner was falsely implicated in the case, and the presumption of innocence cannot be a reason to grant bail. It was observed at page 501:

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“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.

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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)

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“ 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.

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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)

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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 which the court should keep in mind while considering the plea for anticipatory bail. The salutary rule is to balance the cause of the accused and the cause of public justice. Oversolicitous homage to the accused's liberty can, sometimes, defeat the cause of public justice.

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The present petition is to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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It is undisputed that the petitioner had applied for the House Allotment (Annexure P-2). She had mentioned in the application that she belonged to the BPL category, her husband used to earn money by working as a daily wager, he died on 7.3.2016, and the house be allotted to her. She annexed a copy of the Urban BPL Identification card in which the petitioner, her daughter and son were mentioned as members of her family. This is stated to be issued on 15.12.2007. The names of Vijay, the petitioner’s husband, and Navita, the petitioner’s daughter, were deleted due to their death and marriage, respectively. It was specifically mentioned in the certificate that it was required for allotment of the house in Ashiana-II. Therefore, the plea that this

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certificate was not issued at the petitioner’s instance cannot be accepted. This was a document annexed to the application and could not have been annexed by any other person except the petitioner.

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The petitioner is admittedly a government servant. There is no averment in the petition that she falls below the poverty line category. Rather, it was asserted in paragraph. 9 that she had never sought the reissuance of the certificate nor complied with any formality, clearly suggesting that she did not fall within the parameters of the BPL family.

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The investigations are at the initial stage. The petitioner had misled the authorities and sought the benefit of a house which was meant for a person below the poverty line. Such an act has a cascading effect in society because the person for whom the benefit is meant is deprived of it, and ineligible persons get the benefit. This widens the gulf between the poor and the rich, ultimately endangering the social fabric. It deprives a poor person of the hope of coming out of poverty. Therefore, her act cannot be considered lightly, and she cannot be granted prearrest bail.

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