Churamani vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking pre-arrest bail. It has been asserted that an FIR No. 327 of 2022 dated 27.10.2022 was registered at Police Station Balh, District Mandi for the commission of offences punishable under Sections 279, 337 and 304(A) & 304 (AA) of IPC. The petitioner is innocent and he has no connection with the commission of the offence. The petitioner is ready and willing to join the investigation as and when required to do so. He is a respectable person of the society, who has roots in the society and there is no chance of his absconding. Hence the petition.

The petition is opposed by filing a status report asserting that the informant was selling liquor in the liquor vend on the intervening nights of 26.10.2022 and 27.10.2022. He heard some noise, on which, he saw outside and found that a motorcycle was lying on the road. Two persons were lying near the motorcycle. One person was unconscious and the other was crying for help. They were taken to the hospital. The petitioner was driving the motorcycle. The other person subsequently succumbed to his injuries. He was identified as Rakesh Kumar. The police checked the CCTV footage and found that the petitioner was driving the motorcycle at a high speed and hit Rakesh Kumar. Rakesh Kumar and the motorcycle fell after the accident. The blood sample of the petitioner was taken and the quantity of alcohol was found to be 147.12 ± 4.89 mg per cent. The petitioner is yet to be interrogated and arrested.

I have heard Mr. Sanjeev Kumar Suri, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State.

Mr. Sanjeev Kumar Suri, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The custodial interrogation of the petitioner is not required. He would abide by all the terms and conditions, which may be imposed by the Court. Hence, he prayed that the present petition be allowed and the petitioner be released on bail.

Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State submitted that the petitioner was involved in the commission of a heinous offence. One precious life was lost due to the act of the petitioner; therefore, he prayed that the present petition be dismissed.

I have given considerable thought to the submissions at the bar and have gone through the record carefully.

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.”

The police have stated in the status report that it has to interrogate the petitioner and arrest him. It was nowhere mentioned that the custodial interrogation of the petitioner is required. The FIR was lodged on 27.10.2022 and the present petition was filed on 24.10.2023 after the lapse of nearly one year which means that the police do not require the arrest of the petitioner for investigation, otherwise, the police would have arrested him during one year from the date of the registration of the FIR.

Keeping in view the fact that the petitioner remained on bail for more than one year and nature of the offences, the present petition is allowed and the order dated 26.10.2023 is made absolute.