Prem Chand vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking pre-arrest bail in FIR No. 14 of 2025, dated 07.04.2025, registered for the commission of offences punishable under Sections 420, 467, 468 and 471 of the Indian Penal Code (IPC) at Police Station Sangrah, District Sirmour, H.P.

It has been asserted that, as per the prosecution, Panchayat Pradhan and Virender Singh, owner of M/s Shrigul Construction and Traders, had embezzled lakhs of rupees of the government fund provided for the development of Gram Panchayat Dana Ghato (Vikas Khand Sangrah) by forging bills and M-forms showing the transportation of sand and grits in motorcycles and Maruti cars. The amount was released to M/s Shrigul Construction, and it was found that several bills mentioned the registration numbers of Motorcycles, Maruti cars and JCBs as the vehicles in which the sand and grit stones were transported. The same individual was shown to be the owner of multiple vehicles despite the fact that he did not own any vehicle. The same M-forms were used before both the gram panchayats. The police registered F.I.R and investigated the matter. Virender Singh joined the investigation on 22.02.2026 and disclosed that he had procured the M-forms from Prem Chand (present petitioner). The police arrayed the petitioner as an accused based on the statement made by the co-accused. The petitioner's custodial interrogation is not necessary for the investigation. The case of the police is highly improbable. The offences alleged against the petitioner are not heinous and are triable by a Magistrate. The petitioner would join the investigation and abide by the terms and conditions that the Court may impose. Hence, the petition.

The petition is opposed by filing a status report asserting that the police received a complaint regarding the embezzlement of the money by Virender Singh, owner of M/s Shrigul Construction and Traders. Gram Panchyat Dana Ghato had passed the quotation for the transportation of the sand, grit stones and other construction material for the years 2023- 24 and 2024-25 in favour of M/s Shrigul Construction and Traders owned by Virender Singh. He submitted the bills regarding the transportation of the construction material, and the payment was released in favour of M/s Shrigul Construction and Traders. It was found that the registration numbers of the vehicles in which the construction material was shown to have been transported belonged to motorcycles, Maruti cars and JCBs. A forged resolution was passed in the Gram Sabha of Gram Panchayat Redli on 01.01.2023. Reena Devi and Rama Nand were not present in the Gram Sabha, but their names were mentioned. Subsequently, information was provided under the Right to Information Act (RTI), in which the signatures were put, which showed that the signatures were obtained subsequently. The name of Suresh Kumar was mentioned twice. Promila Devi had signed against her name and the name of her husband. The police registered the F.I.R and investigated the matter. The police found during the investigation that Virender Singh had forged 29 M-forms out of 46 issued by Dalip Singh Tomar, 6 M-forms out of 8 issued by M/s Prem Pal & Sons, 3 M-forms issued by Sirmour Industries, one M-form by S S Traders and Sons, and 9 M-forms issued by M/s Shrigul Construction and Traders. In this manner, he had produced 59 forged M-forms. Virender Singh joined the investigation, and he revealed that the tenders were allotted to him by the Gram Panchayats Redli and Danaghato. Prem Chand (the present petitioner) had supplied all the M forms to Virender Singh. The petitioner had also joined the investigation, and he revealed that he had talked to Virender Singh on the phone. Virender Singh had paid ₹28,000/- to him, and he had returned some of the amount to him. The petitioner was interrogated regarding the forgery of the M-forms, but he has not disclosed anything about the forgery, hence the status report.

I have heard Mr Servedaman Rathour, learned counsel for the petitioner and Mr Lokender Kutlehira, learned Additional Advocate General, for the respondent/State.

Mr Servedaman Rathour, learned counsel for the petitioner, submitted that the petitioner is innocent and he was falsely implicated. The petitioner had not forged any M-form, and the only evidence against him is the statement made by the co-accused, which is inadmissible in law; hence, he prayed that the present petition be allowed and the petitioner be released on bail.

Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State, submitted that the petitioner had forged M-forms and supplied them to Virender Singh. The investigation is at the initial stage, and it is to be found out who helped the petitioner in forging the certificates. Hence, he prayed that the present petition be dismissed.

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 arrest is a part of the investigation procedure. The power of pre-arrest bail is extraordinary and should be sparingly exercised. It was observed:

"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 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 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."

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."

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."

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 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 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.

In the aforesaid context, we may refer to a pronouncement in CBI v. V. Vijay Sai Reddy[CBIv.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)

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 that 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.

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

It is an admitted case of the prosecution that the tender was allotted to Virender Singh, who had submitted the M-forms to the Gram Panchayat. Learned Additional Sessions Judge, Nahan, has released Virender Singh on pre-arrest bail in Bail Application No. 29-N/22 of 2026, decided on 13.03.2026. Hence, the petitioner is also entitled to pre-arrest bail on the principle of parity and is entitled to bail.

The status report shows that the petitioner was implicated based on the statement made by the co-accused, Virender Singh. The petitioner also joined the investigation and denied that he had forged any M-form. The police have not collected any material at this stage to show that the statement made by Virender Singh is correct. The police also found that some of the M forms supplied to the panchayats were genuine. There is no material on record to show that the petitioner had supplied the whole of the construction material and M-forms with it. Therefore, there is insufficient material at this stage to connect the petitioner to the commission of a crime.

It has been submitted in the status report that the petitioner joined the investigation, but did not provide the details of the forgery. The petitioner has a right to silence, and he cannot be compelled to be a witness against himself. The petitioner cannot be sent to police custody simply because he had not confessed to the commission of the crime.

It was laid down by the Hon'ble Supreme Court in Tusharbhai Rajnikantbhai Shah v. Kamal Dayani, (2025) 1 SCC 753, that an accused refusing to confess to the crime does not amount to non-cooperation and any confession made by the accused is inadmissible in evidence. It was observed: -

"43. We are of the firm opinion that non-cooperation by the accused is one matter, and the accused refusing to confess to the crime is another. There would be no obligation upon the accused that, on being interrogated, he must confess to the crime and only thereafter would the investigating officer be satisfied that the accused has cooperated with the investigation. As a matter of fact, any confession made by the accused before a police officer is inadmissible in evidence and cannot even form a part of the record.

This Court vide order dated 12-7-2024 passed in Sanuj Bansal v. State of U.P. [Sanuj Bansal v. State of U.P., 2024 SCC OnLine SC 2335] has held that such confessions recorded in the interrogation notes of the accused cannot form part of the charge-sheet."

It was held in Hemant Kumar vs State of Haryana SLp (Crl) no. 232 of 2024, decided on 06.03.2024, that failure to recover the money taken as a bribe does not amount to non-cooperation. It was observed:

"On going through the materials disclosed, we are of the opinion that custodial interrogation of the appellant is not necessary for the purpose of the ongoing investigation. There is no aggravating factor that would justify the detention of the appellant at the investigation stage. On behalf of the State, it was sought to be argued that the appellant was not cooperating with the investigation. But in response to our query about the nature of such non-cooperation, it was submitted on behalf of the State that the appellant, as an accused, was not helping out for the recovery of the sum allegedly paid to him as a bribe. In our opinion, however, participation in the investigation does not entail making self-incriminating statements, which seems to be the reason for which the State wants him in custody."

It was held in Bijender vs State of Haryana SLP (Crl) no. 1079 of 2024, decided on 06.03.2024, that a person is not expected to make a self-incriminatory statement under the threat that the State shall withdraw the interim protection granted to him. It was observed:

"An accused, while joining investigation as a condition for remaining enlarged on bail, is not expected to make self-incriminating statements under the threat that the State shall seek withdrawal of such interim protection."

The petitioner has a right of silence under Article 20 of the Constitution of India and cannot be compelled to be a witness against himself. It was held by the European Commission of Human Rights in John Murray vs. United Kingdom [1996] ECHR 3 that the right to silence and the right against self-incrimination form the core of the fair procedure. It was observed:

"Although not specifically mentioned in Article 6 (art. 6) of the Convention, there can be no doubt that the right to remain silent under police questioning and the privilege against self-incrimination are generally recognised international standards which lie at the heart of the notion of a fair procedure under Article 6 (art. 6) (see the Funke judgment cited above, loc. cit.). By providing the accused with protection against improper compulsion by the authorities, these immunities contribute to avoiding miscarriages of justice and to securing the aims of Article 6 (art. 6)."

Therefore, the police custody cannot be authorised to compel the petitioner to be a witness against himself.

In view of the above, the present petition is allowed, and the order dated 06.04.2026 is made absolute and while on bail, the petitioner shall abide by the following terms and conditions:

i) The petitioner will join the investigation as and when directed to do so.

ii) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

(iii) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of the intended visit to the SHO of the concerned police station and the Court.

(iv) The petitioner will surrender his passport, if any, to the concerned Police Station; and

(v) The petitioner will furnish his mobile number, and social media contact to the Police and will abide by the summons/ notices received from the Police/ Court through SMS/WhatsApp/ Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the merits of the case.

The present petition stands disposed of in the above terms, so also pending applications, if any.