Himachal Pradesh High Court
Hem Raj vs State Of Himachal Pradesh on 4 March, 2025
Neutral Citation No. ( 2025:HHC:4385 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 226 of 2025
Reserved on: 27.02.2025
Date of Decision: 04.03.2025.
Hem Raj ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon’ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting?1 No
For the Petitioner : Mr. Prashant Chauhan, Advocate.
For the Respondent : Mr Gautam Sood, Deputy Advocate
General with HC Vikram No. 116, IO
Police Station Theog, H.P.
Rakesh Kainthla, Judge
The petitioner has filed the present petition for
seeking pre-arrest bail. It has been asserted that the petitioner
was falsely implicated in FIR no. 14/2025 dated 07.02.2025,
registered at Police Station Theog, District Shimla H.P. for the
commission of offences punishable under Sections 115(2),
118(1), 126(2) and 351 (2) of the Bhartiya Nyaya Sanhita, 2023
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Neutral Citation No. ( 2025:HHC:4385 )
(BNS). The petitioner is innocent and no case is made out
against him. The complaint was filed to harass the petitioner.
The petitioner is a respectable member of the society. He would
abide by all the terms and conditions, which the Court may
impose. Hence, the petition.
2. The petition is opposed by filing a status report
asserting that the informant came to the police post in an
injured condition with his employer-Prem Verma. Prem Verma
filed an application asserting that the petitioner came to the
room of the victim on 05.02.2025 and demanded charas and
liquor. Subsequently, he (the petitioner) attacked the victim
with Darat on the head. The victim made a statement that the
petitioner had visited his room and asked for food. The victim
served the food, and the petitioner asked the victim to show the
road to Tikkar. The victim accompanied the accused. The
accused/petitioner picked up a quarrel with the victim on the
way and inflicted a blow on the head of the victim with a Darat.
The police conducted the investigation. The Medical Officer
found a grievous injury on the head. The petitioner got
recovered a Darat, the weapon of offence. An FIR No. 9/2022
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Neutral Citation No. ( 2025:HHC:4385 )
dated 02.02.2022 was earlier registered against the petitioner
for the commission of offences punishable under Sections 452,
354(A), 323, 325, 376, 511 of IPC. The petitioner was also
convicted in FIR No. 46/2009, dated 29.03.2009, for the
commission of offences punishable under Sections 376 and 506
of IPC; hence, the status report.
3. I have heard Mr. Prashant Chauhan, learned counsel
for the petitioner and Mr. Gautam Sood, learned Deputy
Advocate General, for the respondent-State.
4. Mr. Prashant Chauhan, learned counsel for the
petitioner, submitted that the petitioner is innocent and he was
falsely implicated. The petitioner is not required for custodial
interrogation; therefore, he prayed that the present petition be
allowed and the petitioner be released on pre-arrest bail.
5. Mr Gautam Sood, learned Deputy Advocate General
for the respondent-State, submitted that the petitioner had
inflicted an injury on the victim’s head with a Darat, a sharp-
edged weapon. The petitioner was involved in the commission of
the offences earlier, and he has been convicted in one of the
cases. There is a likelihood of the petitioner committing an
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Neutral Citation No. ( 2025:HHC:4385 )
offence in case of his release on bail, therefore, it was prayed
that the present petition be dismissed.
6. I have given considerable thought to the
submissions made at the bar and have gone through the records
carefully.
7. It was laid down by the Hon’ble Supreme Court in P.
Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that
the power of pre-arrest is extraordinary and should be exercised
sparingly. It was observed:
“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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Neutral Citation No. ( 2025:HHC:4385 )
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.”
9. 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
6
Neutral Citation No. ( 2025:HHC:4385 )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.”
10. The present application has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
11. Section 109(2) of Bhartiya Nayaya Sanhita reads that,
if any, act is done with such intention or knowledge and in such
circumstance that if by that act death is caused and the person is
guilty of murder, he is liable to be imprisoned. In the present
case, the petitioner had inflicted a blow on the head, a vital part
of the body with a sharp-edged weapon, namely, a Darat and
had the death been caused, the petitioner would be, prima facie,
guilty of the commission of the murder. The status report does
not show that the incident had taken place all of a sudden. The
fact that the petitioner was carrying the weapon shows the pre-
meditation; hence, prima facie, the offence punishable under
Section 109(2) of BNS is made out against the petitioner.
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Neutral Citation No. ( 2025:HHC:4385 )
12. It was submitted that no serious injury was caused to
the person of the victim and the offence punishable under
Section 109 of BNS is not attracted. This submission is only
stated to be rejected. It was laid down by the Hon’ble Supreme
Court in Shoyeb Raja v. State of M.P., 2024 SCC OnLine SC 2624
that infliction of bodily injury is not necessary to constitute an
offence punishable under Section 307 of IPC (corresponding to
Section 109 (2) of BNS). It was observed:
11.1 In State of Maharashtra v. Kashirao (2003) 10 SCC 434,
the Court identified the essential ingredients for the
applicability of the section. The relevant extract is as
below:
“The essential ingredients required to be proved in
the case of an offence under Section 307 are:
(i) that the death of a human being was
attempted;
(ii) that such death was attempted to be caused
by, or in consequence of the act of the accused;
and
(iii) that such act was done with the intention of
causing death; or that it was done with the
intention of causing such bodily injury as : (a)
the accused knew to be likely to cause death; or
(b) was sufficient in the ordinary course of
nature to cause death, or that the accused
attempted to cause death by doing an act known
to him to be so imminently dangerous that it
must in all probability cause (a) death, or (b)
such bodily injury as is likely to cause death, the
8
Neutral Citation No. ( 2025:HHC:4385 )accused having no excuse for incurring the risk
of causing such death or injury.”
11.2 This Court in Om Prakash v. State of Punjab 1961 SCC
OnLine SC 72, as far back as 1961, observed the
constituents of the Section, having referred to various
judgments of the Privy Council, as under:
“a person commits an offence under Section 307
when he has an intention to commit murder and, in
pursuance of that intention, does an act towards its
commission irrespective of the fact whether that
act is the penultimate act or not. It is to be clearly
understood, however, that the intention to commit
the offence of murder means that the person
concerned has the intention to do a certain act with
the necessary intention or knowledge mentioned in
Section 300. The intention to commit an offence is
different from the intention or knowledge requisite
for constituting the act as that offence. The
expression “whoever attempts to commit an offence”
in Section 511, can only mean “whoever: intends to do
a certain act with the intent or knowledge necessary
for the commission of that offence”. The same is meant
by the expression “whoever does an act with such
intention or knowledge and under such circumstances
that if he, by that act, caused death, he would be guilty
of murder” in Section 307. This simply means that
the act must be done with the intent or knowledge
requisite for the commission of the offence of
murder. The expression “by that act” does not
mean that the immediate effect of the act
committed must be death. Such a result must be the
result of that act whether immediately or after a
lapse of time.” (Emphasis supplied)
11.3 Hari Mohan Mandal v. State of Jharkhand (2004) 12
SCC 220 holds that the nature or extent of injury suffered,
are irrelevant factors for the conviction under this
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Neutral Citation No. ( 2025:HHC:4385 )
section, so long as the injury is inflicted with animus. It
has been held:
“10. …To justify a conviction under this section, it is
not essential that bodily injury capable of causing
death should have been inflicted. Although the nature
of injury actually caused may often give considerable
assistance in coming to a finding as to the intention of
the accused, such intention may also be deduced from
other circumstances, and may even, in some cases, be
ascertained without any reference at all to actual
wounds. …What the court has to see is whether the act,
irrespective of its result, was done with the intention or
knowledge and under the circumstances mentioned in
the section. An attempt in order to be criminal need not
be the penultimate act. It is sufficient in law if there is
present an intent coupled with some overt act in
execution thereof.
11. It is sufficient to justify a conviction under
Section 307 if there is present an intent coupled
with some overt act in the execution thereof. It is
not essential that bodily injury capable of causing
death should have been inflicted. If the injury
inflicted has been with the avowed object or intention
to cause death, the ritual nature, extent or character of
the injury or whether such injury is sufficient to
actually causing death are really factors which are
wholly irrelevant for adjudging the culpability under
Section 307IPC. The section makes a distinction
between the act of the accused and its result, if
any. The court has to see whether the act, irrespective
of its result, was done with the intention or knowledge
and under the circumstances mentioned in the section.
Therefore, it is not correct to acquit an accused of the
charge under Section 307 IPC merely because the
injuries inflicted on the victim were in the nature of a
simple hurt.” (Emphasis supplied)
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Neutral Citation No. ( 2025:HHC:4385 )
13. Therefore, the infliction of the serious injury is not
sufficient to attract the provisions of Section 109 of BNS. The
only requirement is that the circumstances should have been
such that if the death were caused, the person would have been
guilty of the commission of murder. In the present case, it has
already been found out above that prima facie, had the death
been caused, the petitioner would have been guilty of the
murder; hence, the offence punishable under Section 109(2) of
the BNS Act would be prima facie, made out even if no serious
injury was caused to the victim.
14. The petitioner has criminal antecedents. One FIR is
pending investigation against the petitioner and the petitioner
has been convicted in another FIR. This Court exhaustively dealt
with the relevance of criminal antecedents in Aminodin vs State
of H.P. 2024:HHC: 6091 and held after referring to various
judgments that a Judge must consider the criminal antecedents
of the accused, the nature of such offences and his general
conduct while considering the bail petition. The bail should not
be generally granted to an accused having criminal antecedents
when there is a likelihood of the commission of the crime. In the
11
Neutral Citation No. ( 2025:HHC:4385 )present case, the registration of the FIRs against the petitioner
shows that he is likely to commit a crime in case of his release on
bail, and the petitioner cannot be released on bail on this
consideration as well.
15. In view of the above, the petitioner cannot be held
entitled to pre-arrest bail at this stage, hence, the present
petition fails and the same is dismissed.
16. The observation made herein before shall remain
confined to the disposal of the instant petition and will have no
bearing, whatsoever, on the merits of the case.
17. The present petition stands disposed of, and so are
the pending miscellaneous applications, if any.
(Rakesh Kainthla)
Judge
4th March, 2025
(saurav pathania)
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