Himachal Pradesh High Court
Reserved On: 18.07.2025 vs State Of Himachal Pradesh on 29 July, 2025
2025:HHC:24714 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 1667 of 2025 Reserved on: 18.07.2025 .
Date of Decision: 29.07.2025.
Abhay Pisal ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No For the Petitioner : M/s Hemant Kumar and Amandeep Singh, Advocates.
For the Respondent : Mr. Lokender Kutlehria, Additional Advocate General.
Rakesh Kainthla, Judge The petitioner has filed the present petition for seeking pre-arrest bail in FIR No. 121 of 2025, dated 06.07.2025, registered at Police Station Dharampur, District Solan, H.P. for the commission of offences punishable under Sections 465 & 468 of the Indian Penal Code (IPC) and Section 25 of the Arms Act.
2. It has been asserted that the petitioner is a law-
abiding citizen of India and served the Nation with utmost 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 29/07/2025 21:23:56 :::CIS 22025:HHC:24714 dedication and honour in the Indian Army. He holds the rank of Lieutenant. He has reasonable apprehension that he would be .
arrested by the police in F.I.R. No. 121 of 2025 dated 06.07.2025.
The F.I.R. was lodged without any investigation. There was a matrimonial dispute between the petitioner and his wife. The petitioner's wife filed a false complaint before the Chief Executive Officer of the Army against the petitioner. An internal inquiry was initiated against the petitioner. The petitioner was placed under suspension till the conclusion of the investigation.
An unknown person filed a complaint, which was published in the daily newspaper. The petitioner found that the present F.I.R.
was lodged against him. The petitioner apprehends his arrest.
He has no criminal history. He would abide by all the terms and conditions which the Court may impose. Hence, the petition.
3. The petition is opposed by a filing a status report asserting that an F.I.R. was lodged in the Police Station on behalf of Union of India stating that the petitioner possessed Driving License, Ration Card, Aadhar Card, PAN Card and Armed Forces Identity Card, all with his photograph, but in the name of Tahir Mustafa. He also possessed a 12 Bore Gun without a license.
This material was seized by the Board of Officers while carrying ::: Downloaded on - 29/07/2025 21:23:56 :::CIS 3 2025:HHC:24714 out the inquiry regarding the petitioner being in contact with a Pakistani Intelligence Operative. The matter regarding the .
forged documents and 12-bore Gun without a license falls within the purview of the Civil Agencies. Therefore, it was prayed that the action be taken in the matter. The police registered the F.I.R.
and seized the documents. The petitioner is to be interrogated to determine from where he obtained a 12 Bore Gun, which did not have the name of any company or the serial number. It is also to be ascertained why he was possessing the documents in the name of Tahir Mustafa. The bank details of the petitioner are to be verified. Hence, the status report.
5. I have heard M/s Hemant Kumar Thakur and Amandeep Singh, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State.
6. Mr. Hemant Kumar Thakur, learned counsel for the petitioner, submitted that the petitioner is innocent and was falsely implicated. He possessed the documents in connection with his service. These documents were prepared by the petitioner as per the directions of his higher authorities when he ::: Downloaded on - 29/07/2025 21:23:56 :::CIS 4 2025:HHC:24714 was posted at Jammu & Kashmir. The petitioner was absolved of espionage by the Board of Inquiry. Therefore, he prayed that the .
present petition be allowed and the petitioner be released on pre-arrest bail.
7. Mr. Lokender Kulehria, learned Additional Advocate General submitted that the petitioner was found in possession of Driving License, Ration Card, Aadhar Card, PAN Card and Armed (petitioner's) r to Forces Identity Card in the name of Tahir Mustafa with his photographs. These documents had similar numbers as the genuine documents issued in the petitioner's name. The petitioner had a 12 Bore Gun without the manufacturer's name and serial number. The custodial interrogation of the petitioner is necessary to determine the source of the documents and the gun. Hence, he prayed that the present petition be dismissed.
8. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
9. It was laid down by the Hon'ble Supreme Court in P. Chidambaram v. Directorate of Enforcement, (2019) 9 SCC 24: (2019) 3 SCC (Cri) 509: 2019 SCC OnLine SC 1143 that the power of pre-
::: Downloaded on - 29/07/2025 21:23:56 :::CIS 52025:HHC:24714 arrest bail is extraordinary and should be exercised sparingly. It was observed:
.
"69. Ordinarily, 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 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 are considered 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."
10. 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 ::: Downloaded on - 29/07/2025 21:23:56 :::CIS 6 2025:HHC:24714 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."
11. It was held in Pratibha Manchanda v. State of Haryana, (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."
12. It was held in Devinder Kumar Bansal v. State of Punjab, (2025) 4 SCC 493: 2025 SCC OnLine SC 488 that pre-arrest bail can be granted in exceptional circumstances where the Court is of the view that the petitioner was falsely implicated in the ::: Downloaded on - 29/07/2025 21:23:56 :::CIS 7 2025:HHC:24714 case, and the presumption of innocence cannot be a reason to grant bail. It was observed at page 501:
.
"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 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.
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) "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. 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) ::: Downloaded on - 29/07/2025 21:23:56 :::CIS 8 2025:HHC:24714
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. Over solicitous homage to the accused's liberty can, sometimes, defeat the cause of public justice.
13. The present petition is to be decided as per the parameters laid down by the Hon'ble Supreme Court.
14. Perusal of the status report shows that the petitioner was found in possession of Driving License, Ration Card, Aadhar Card, PAN Card and Armed Forces Identity Card. All these documents have his photograph and name of Tahir Mustafa. The number of genuine documents issued in the name of the petitioner and the documents in the name of Tahir Mustafa were the same, which, prima facie, shows that the documents are forged. He was also found in possession of a 12 Bore Gun without any serial number or the name of the manufacturer.
15. The submission that the documents were prepared at the instance of higher authorities when the petitioner was posted at Jammu and Kashmir cannot be accepted because Army authorities have made the complaint on behalf of the Union of ::: Downloaded on - 29/07/2025 21:23:56 :::CIS 9 2025:HHC:24714 India. Had the plea of the petitioner been true, his higher authorities would not have made any complaint against him for .
possessing the documents.
16. The petitioner claimed that the 12 Bore Gun was possessed by him in connection with his duties; however, he has not annexed any document to support this plea. Further, it is difficult to believe that the Army would have issued him a 12 Bore Gun without the serial number and the name of the manufacturer and would have made a complaint against him after finding such a 12 Bore Gun in his possession.
17. A heavy reliance was placed upon the report of the Board of Officers to submit that the petitioner was not involved in espionage activities. It is not necessary to comment on the same because the Military Authorities are conducting an inquiry into the espionage activities, and this Court is not required to say anything in this matter.
18. The allegations made against the petitioner are serious and justify the custodial interrogation of the petitioner to know about the source of the documents and the 12 Bore Gun.
Keeping in view the nature of the matter and the post held by the ::: Downloaded on - 29/07/2025 21:23:56 :::CIS 10 2025:HHC:24714 petitioner, the plea of the police has to be accepted as correct. It was laid down by the 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:-
"6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation- oriented 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 disintering 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".
19. A similar view was taken by the Delhi High Court in Mukesh 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 ::: Downloaded on - 29/07/2025 21:23:56 :::CIS 11 2025:HHC:24714 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."
.
20. It was held in P Chidambaram (supra) that the grant of pre-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."
21. Keeping in view these circumstances, the petitioner cannot be released on pre-arrest bail; hence, the present petition fails and the same is dismissed.
22. The observations made heretofore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 29th July, 2025 (ravinder) ::: Downloaded on - 29/07/2025 21:23:56 :::CIS