Himachal Pradesh High Court
Hardeep Singh vs State Of Himachal Pradesh on 13 March, 2025
( 2025:HHC:5929 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No.283 of 2025
Reserved on: 07.03.2025
Date of Decision: 13.03.2025
Hardeep Singh …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. Bhupinder Gupta, Vivek
Thakur and Harish Janjhi,
Advocates.
For the Complainant : Mr. Lokender Paul, Advocate.
For the Respondent : Mr Lokender Kutlehria, Additional
Advocate General, with ASI
Jamaldin I.O PS Una, District Una
(HP).
Rakesh Kainthla, Judge
The informant, Rahul Kumar, filed a complaint
before the police, asserting that he is a resident of District Una
and is engaged in property dealing and construction activity. He
has one daughter. He wanted to provide a good education to her.
He saw an advertisement for M/s Harnidh Overseas Pathway
1
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
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Education (HOPE) stating that it was a branch of M/s Harnidh
Overseas Pathway Education (HOPE) of the UK (United
Kingdom), which provides services of visa and employment in
the U.K. The informant called the office, and he was assured that
HOPE would arrange for the work permit and job for Mrs. Sonali
Thakur, the informant’s wife, as a skilled worker. He was also
assured that he would be getting a permanent resident (PR) in
the U.K., he would be inducted as a partner in one of their
ventures in the U.K., and his share would be increased
subsequently. An amount of ₹ thirty lakhs was demanded to
arrange a visa and for travel expenses. The matter was settled at
₹ twenty seven lakhs plus visa fee and air tickets on an actual
basis. The amount was transferred to the account of the
petitioner, Hardeep Singh, Managing Director of HOPE. The
informant and his family members were sent from India with an
assurance that the petitioner would pick them up at the Airport
and make arrangements for their stay, but no person met at the
airport to take them to their place of stay. The informant
contacted some employees of the company who took them to
Luton. The informant had to stay at Gurudwara in Luton, where
a small room was available. The informant’s wife was told that
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no job was available for her. The informant was also not
inducted as a partner. The informant arranged money from his
relatives in India and returned. He demanded the money
deposited by him in the account of the petitioner, but the money
was not returned. The police registered FIR No. 275 of 2024,
dated 06.09.2024, based on these allegations for the
commission of an offence punishable under Section 420 of the
Indian Penal Code (IPC) at Police Station Sadar, District Una,
H.P. and commenced the investigation.
2. The petitioner approached this Court seeking pre-
arrest bail. It has been asserted that the petitioner never made
any representation or false promise of employment in the U.K.
The informant sought the services of the petitioner to secure a
visa for his family, which was duly provided. The informant
remained in the UK for a considerable period. He could not settle
in the U.K. and returned to India. The petitioner entered into a
compromise with the informant. He handed over two cheques of
₹ four lakhs each to the informant. He paid ₹ four lakhs in cash
to the informant, and the informant issued a receipt to this
effect. He transferred the balance amount of ₹ four lakhs in
various installments. The informant presented the cheques
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which were dishonoured, and he filed a complaint under Section
138 of the Negotiable Instruments Act (“in short NI Act“). The
incident occurred in Jalandhar, and an FIR in Una could not have
been lodged. The custody of the petitioner is not required. The
petitioner has no criminal history. He would join the
investigation as and when directed to do so and would abide by
all the terms and conditions, which the Court may impose.
Hence the petition.
3. The petition is opposed by filing a status report,
asserting that the informant filed a complaint before the police,
the police seized various documents and recorded the
statements of witnesses. The police searched for the petitioner,
but he could not be traced. The other persons involved in the
commission of the offence are yet to be arrested. No other FIR
has been registered against the petitioner. Hence, the status
report.
4. I have heard M/s. Bhupinder Gupta, Mr Vivek Thakur
and Mr Harish Janjhi, Advocates, learned counsel for the
petitioner, Mr Lokender Kutlehria, learned Additional Advocate
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General, for respondent-State and Mr Lokender Paul, learned
counsel for the informant.
5. Mr. Bhupinder Gupta, learned counsel for the
petitioner, submitted that the petitioner is innocent and he was
falsely implicated. The petitioner had not made any
misrepresentation. The dispute between the parties is purely
civil. The petitioner cooperated with the investigation, and no
recovery was effected from him. The petitioner joined the
investigation, and his custodial interrogation is not required.
Therefore, he prayed that the present petition be allowed and
the petitioner be released on pre-arrest bail.
6. Mr Lokender Kutlehria, learned Additional Advocate
General for the respondent-State, submitted that the petitioner
had made a misrepresentation to the victim/informant. The
informant paid ₹ twenty seven lakhs based on the
misrepresentation. The petitioner failed to honour the
representation made by him. The informant had to return to
India after borrowing money from his relatives/friends. The
petitioner had not even returned the amount taken by him.
Therefore, he prayed that the present petition be dismissed.
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7. Mr. Lokender Paul, learned counsel for the
informant, adopted the submissions of the learned Additional
Advocate General. He further submitted that the petitioner had
filed various cases against the informant to compel him to
compromise the matter. He is abusing the process of the Court
and is not entitled to pre-arrest bail. 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 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
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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 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:
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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.”
12. The present application has to be decided as per the
parameters laid down by the Hon’ble Supreme Court.
13. It was submitted that the present dispute is civil and
relates to the breach of promise. The police are conducting the
investigation, and it is premature to say anything. However, the
averments in the FIR show that the representations were made
to the informant which were not fulfilled. Whether the promises
were made without any intention of honouring them or they
could not be fulfilled due to some bona fide reason is yet to be
ascertained.
14. The status report shows that the petitioner had
joined the investigation. The status report does not show that
the custodial interrogation of the petitioner is required. It only
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mentions that Gagandeep Singh, Retham Verma and Rajat are to
be interrogated. Thus, the pre-trial detention of the petitioner is
not justified.
15. The petitioner submitted that some compromise was
effected between the parties, and the petitioner had paid ₹ eight
lakhs to the informant as a full and final settlement. This is a
matter to be investigated, and nothing is required to be said at
this stage.
16. It was submitted that the petitioner is not returning
the money taken by him from the informant. The informant had
sold his house to visit the U.K., and he has been rendered
homeless. Therefore, the petition be dismissed. This submission
is not acceptable. It was laid down by the Hon’ble Supreme Court
in Ramesh Kumar vs State NCT of Delhi (2023) 7 SCC 461 that the
bail proceedings cannot be turned into recovery proceedings. It
was observed:-
23. In Dilip Singh v. State of M.P. [Dilip Singh v. State of
M.P., (2021) 2 SCC 779: (2021) 2 SCC (Cri) 106], this Court
sounded a note of caution in the following words : (SCC p.
780, paras 3-4)
“3. By imposing the condition of deposit of Rs 41
lakhs, the High Court has, in an application for pre-
arrest bail under Section 438 of the Criminal
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Procedure Code, virtually issued directions in the
nature of recovery in a civil suit.
4. It is well settled by a plethora of decisions of this
Court that criminal proceedings are not for the
realisation of disputed dues. It is open to a court to
grant or refuse the prayer for anticipatory bail,
depending on the facts and circumstances of the
particular case. The factors to be taken into
consideration, while considering an application for
bail are the nature of the accusation and the
severity of the punishment in the case of conviction
and the nature of the materials relied upon by the
prosecution; reasonable apprehension of tampering
with the witnesses or apprehension of threat to the
complainant or the witnesses; the reasonable
possibility of securing the presence of the accused
at the time of trial or the likelihood of his
abscondence; character, behaviour and standing of
the accused; and the circumstances which are
peculiar or the accused and larger interest of the
public or the State and similar other considerations.
A criminal court, exercising jurisdiction to grant
bail/anticipatory bail, is not expected to act as a
recovery agent to realise the dues of the
complainant, and that too, without any trial.”
24. Yet again in Bimla Tiwari v. State of Bihar [Bimla
Tiwari v. State of Bihar, (2023) 11 SCC 607: 2023 SCC OnLine
SC 51], this is what the Court said : (SCC paras 9-11)
“9. We have indicated on more than one occasion
that the process of criminal law, particularly in
matters of grant of bail, is not akin to money
recovery proceedings but what has been noticed in
the present case carries the peculiarities of its own.
10. We would reiterate that the process of criminal
law cannot be utilised for arm-twisting and money
recovery, particularly while opposing the prayer for
bail. The question as to whether pre-arrest bail, or
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for that matter regular bail, in a given case is to be
granted or not is required to be examined and the
discretion is required to be exercised by the Court
with reference to the material on record and the
parameters governing bail considerations. Putting
it in other words, in a given case, the concession of
pre-arrest bail or regular bail could be declined
even if the accused has made payment of the money
involved or offers to make any payment;
conversely, in a given case, the concession of pre-
arrest bail or regular bail could be granted
irrespective of any payment or any offer of
payment.
11. We would further emphasise that, ordinarily,
there is no justification in adopting such a course
that for the purpose of being given the concession
of pre-arrest bail, the person apprehending arrest
ought to make payment. Recovery of money is
essentially within the realm of civil proceedings.”
25. Law regarding the exercise of discretion while
granting a prayer for bail under Section 438CrPC having
been authoritatively laid down by this Court, we cannot
but disapprove the imposition of a condition of the nature
under challenge. Assuming that there is substance in the
allegation of the complainants that the appellant (either
in connivance with the builder or even in the absence of
any such connivance) has cheated the complainants, the
investigation is yet to result in a charge sheet being filed
under Section 173(2)CrPC, not to speak of the alleged
offence being proved before the competent trial court in
accordance with the settled procedures and the applicable
laws. Sub-section (2) of Section 438CrPC does empower
the High Court or the Court of Session to impose such
conditions while making a direction under sub-section
(1) as it may think fit in the light of the facts of the
particular case and such direction may include the
conditions as in clauses (i) to (iv) thereof. However, a
reading of the precedents laid down by this Court referred
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to above makes the position of law clear that the
conditions to be imposed must not be onerous
unreasonable or excessive. In the context of the grant of
bail, all such conditions that would facilitate the
appearance of the accused before the investigating
officer/court, unhindered completion of
investigation/trial and safety of the community assume
relevance. However, the inclusion of a condition for
payment of money by the applicant for bail tends to
create an impression that bail could be secured by
depositing money alleged to have been created. That is
really not the purpose and intent of the provisions for the
grant of bail.
17. Therefore, the bail proceedings cannot be used to
recover the amount advanced by the informant to the petitioner.
18. Since the custodial interrogation of the petitioner is
not required, therefore, no useful purpose would be served by
detaining the petitioner in custody.
19. Hence, the present petition is allowed and the order
dated 18.02.2025 is made absolute.
20. The observations made herein before shall remain
confined to the disposal of the petition and will have no bearing,
whatsoever, on the merits of the case.
(Rakesh Kainthla)
Judge
13th March, 2025
(Shamsh Tabrez)