2026:HHC:18425

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 820 of 2026

Reserved on: 13.5.2026

Date of Decision: 20.5.2026.

Bhajan Lal Negi …. Petitioner

Versus

State of HP & anr. …. Respondents

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge.

Whether approved for reporting?

1

No.

For the Petitioner : M/s Kartik Rajta and Ruchika

Khachi, Advocates.

For the Respondent/State : Mr. Jitender Sharma,

Additional Advocate General.

Rakesh Kainthla, Judge

The petitioner has filed the present petition for

cancellation of the bail granted by this Court in Cr.MP(M) No. 706

of 2026 titled Anita Nathta Vs. State of H.P., decided on

30.4.2026.

2. It has been asserted that the petitioner is the

complainant in FIR No. 95 of 2023 for the commission of

offences punishable under Sections 409 and 420, read with

Section 120-B of the Indian Penal Code (IPC) and other relevant

1

Whether reporters of Local Papers may be allowed to see the judgment? Yes.

2

2026:HHC:18425

provisions. Rspondent No.2/accused had initially approached the

Court of learned Additional Sessions Judge, Rohru, for seeking

pre-arrest bail. This application was dismissed by the learned

Additional Sessions Judge, considering the seriousness of the

allegations. Respondent No.2/accused approached this Court,

and this Court granted pre-arrest bail to the respondent/accused

in Cr.MP(M) No. 706 of 2026. The order has been passed without

considering the gravity and the seriousness of the allegation,

especially those pertaining to the misappropriation of public

funds. The pre-arrest bail application of respondent

No.2/accused had already been rejected by the learned Trial Court

after due consideration, and this was not considered by this

Court while granting bail. Respondent No.2/accused is likely to

misuse the concession of pre-arrest bail. She is attempting to

influence witnesses and interfere with the investigation. Her

custodial interrogation is necessary for proper investigation and

recovery of misappropriated funds. The signatures of the accused

can only be obtained under Section 311A of Cr.PC only if the

person is in custody. The State had failed to disclose the

requirement of obtaining the specimen signatures; hence, the

present petition.

3

2026:HHC:18425

3. I have heard M/s Kritika Rajta and Ruchika Khachi,

learned counsel for the petitioner, and Mr Jitender Sharma,

learned Additional Advocate General for respondent No.1/State.

4. Ms. Ruchika Khachi, learned counsel for the

petitioner, submitted that respondent No.2/accused had applied

for pre-arrest bail before the learned Additional Sessions Judge

and her application was rejected. This Court had granted bail

without considering the seriousness of the offence. The custody

of respondent No.2/accused is required for obtaining her

signature, as the signatures cannot be obtained under Section

311A without arresting the accused. The petitioner is influencing

the witnesses; therefore, she prayed that the present petition be

allowed and the pre-arrest bail granted to respondent

No.2/accused be cancelled.

5. Mr Jitender Sharma, learned additional Advocate

General for respondent No.1/State submitted that an appropriate

order may be passed in the present petition.

6. I have given a considerable thought to the

submissions made at the bar and have gone through the records

carefully.

4

2026:HHC:18425

7. The Hon’ble Supreme Court held in Ajwar v. Waseem

(2024) 10 SCC 768: 2024 SCC OnLine SC 974 that the bail, once

granted, should not be cancelled mechanically; however, an

unreasoned and perverse order is open to interference by the

Superior Court. The bail can be cancelled if there are serious

allegations against the accused. It was observed at page 783:

“7. It is equally well settled that bail, once granted, ought

not to be cancelled in a mechanical manner. However, an

unreasoned or perverse bail order is always open to

interference by the superior court. If there are serious

allegations against the accused, even if he has not misused

the bail granted to him, such an order can be cancelled by

the same Court that has granted the bail. Bail can also be

revoked by a superior court if it transpires that the courts

below have ignored the relevant material available on

record or not looked into the gravity of the offence or the

impact on society, resulting in such an order. In P v. State

of M.P. [P v. State of M.P., (2022) 15 SCC 211] decided by a

three-judge Bench of this Court [authored by one of us

(Hima Kohli, J.)] has spelt out the considerations that

must weigh with the Court for interfering in an order

granting bail to an accused under Section 439(1)CrPC in

the following words : (SCC p. 224, para 24)

“24. As can be discerned from the above decisions, for

cancelling bail once granted, the court must consider

whether any supervening circumstances have arisen or

the conduct of the accused post grant of bail demonstrates

that it is no longer conducive to a fair trial to permit him

to retain his freedom by enjoying the concession of bail

during trial [Dolat Ram v. State of Haryana, (1995) 1 SCC

349: 1995 SCC (Cri) 237]. To put it differently, in ordinary

circumstances, this Court would be loath to interfere with

an order passed by the court below granting bail, but if

5

2026:HHC:18425

such an order is found to be illegal or perverse or premised

on material that is irrelevant, then such an order is

susceptible to scrutiny and interference by the appellate

court.”

Considerations for Setting Aside Bail Orders

28. The considerations that weigh with the appellate court

for setting aside the bail order on an application being

moved by the aggrieved party include any supervening

circumstances that may have occurred after granting

relief to the accused, the conduct of the accused while on

bail, any attempt on the part of the accused to

procrastinate, resulting in delaying the trial, any instance

of threats being extended to the witnesses while on bail,

any attempt on the part of the accused to tamper with the

evidence in any manner. We may add that this list is only

illustrative and not exhaustive. However, the court must

be cautious that at the stage of granting bail, only a prima

facie case needs to be examined, and detailed reasons

relating to the merits of the case that may cause prejudice

to the accused ought to be avoided. Suffice it to state that

the bail order should reveal the factors that have been

considered by the Court for granting relief to the accused.

29. In Jagjeet Singh [Jagjeet Singh v. Ashish Mishra, (2022) 9

SCC 321: (2022) 3 SCC (Cri) 560], a three-judge Bench of

this Court has observed that the power to grant bail under

Section 439CrPC is of wide amplitude and the High Court

or a Sessions Court, as the case may be, is bestowed with

considerable discretion while deciding a bail application.

But this discretion is not unfettered. The order passed

must reflect the due application of the judicial mind

following well-established principles of law. In the

ordinary course, courts would be slow to interfere with the

order where bail has been granted by the courts below. But

if it is found that such an order is illegal or perverse or

based upon utterly irrelevant material, the appellate court

would be well within its power to set aside and cancel the

bail. (Also refer: Puran v. Rambilas [Puran v. Rambilas,

(2001) 6 SCC 338: 2001 SCC (Cri) 1124]; Narendra K. Amin v.

6

2026:HHC:18425

State of Gujarat [Narendra K. Amin v. State of Gujarat, (2008)

13 SCC 584: (2009) 3 SCC (Cri) 813].)

8. Similar is the judgment passed by the Hon’ble

Supreme Court in Manik Madhukar versus Vitthal Damuji Meher

and Ors. 2024: INSC:636 wherein it was observed as under: -

“19. Courts, while granting bail, are required to consider

relevant factors such as the nature of the accusation, the

role ascribed to the accused concerned,

possibilities/chances of tampering with the evidence

and/or witnesses, antecedents, flight risk, et al. Speaking

through Hima Kohli, J., the present coram in Ajwar v.

Waseem, 2024 SCC OnLine SC 974 , apropos relevant

parameters for granting bail, observed:

“26. While considering as to whether bail ought to

be granted in a matter involving a serious criminal

offence, the Court must consider relevant factors like

the nature of the accusations made against the accused,

the manner in which the crime is alleged to have been

committed, the gravity of the offence, the role

attributed to the accused, the criminal antecedents of

the accused, the probability of tampering of the

witnesses and repeating the offence, if the accused are

released on bail, the likelihood of the accused being

unavailable in the event bail is granted, the possibility

of obstructing the proceedings and evading the courts of

justice and the overall desirability of releasing the

accused on bail. (Refer: Chaman Lal v. State of U.P.

(2004) 7 SCC 525; Kalyan Chandra Sarkar v. Rajesh

Ranjan alias Pappu Yadav (supra) (2004) 7 SCC 528;

Masroor v. State of Uttar Pradesh (2009) 14 SCC 286;

Prasanta Kumar Sarkar v. Ashis Chatterjee (2010) 14

SCC 496; Neeru Yadav v. State of Uttar Pradesh (2014)

16 SCC 508; Anil Kumar Yadav v. State (NCT of Delhi)

(2018) 12 SCC 129; Mahipal v. Rajesh Kumar @ Polia

(supra) (2020) 2 SCC 118.

7

2026:HHC:18425

27. It is equally well settled that bail, once granted, ought

not to be cancelled in a mechanical manner. However, an

unreasoned or perverse order of bail is always open to

interference by the Superior Court. If there are serious

allegations against the accused, even if he has not misused

the bail granted to him, such an order can be cancelled by

the same Court that has granted the bail. Bail can also be

revoked by a Superior Court if it transpires that the courts

below have ignored the relevant material available on

record or not looked into the gravity of the offence or the

impact on society, resulting in such an order. In P v. State

of Madhya Pradesh (supra) (2022), 15 SCR 211 decided by

a three-judge bench of this Court [authored by one of

us (Hima Kohli, J)] has spelt out the considerations that

must be weighed with the Court for interfering in an

order granting bail to an accused under Section 439(1)

of the CrPC in the following words:

“24. As can be discerned from the above decisions,

for cancelling bail once granted, the court must consider

whether any supervening circumstances have arisen or

the conduct of the accused post grant of bail

demonstrates that it is no longer conducive to a fair

trial to permit him to retain his freedom by enjoying the

concession of bail during trial [Dolat Ram v. State of

Haryana, (1995) 1 SCC 349: 1995 SCC (Cri) 237]. To

put it differently, in ordinary circumstances, this Court

would be loath to interfere with an order passed by the

court below granting bail, but if such an order is found

to be illegal or perverse or premised on material that is

irrelevant, then such an order is susceptible to scrutiny

and interference by the appellate court.” (emphasis

supplied)

20. In State of Haryana v. Dharamraj, 2023 SCC OnLine SC

1085, speaking through one of us (Ahsanuddin Amanullah,

J.), the Court, while setting aside an order of the Punjab

and Haryana High Court granting (anticipatory) bail,

discussed and reasoned:

8

2026:HHC:18425

“7. A foray, albeit brief, into relevant precedents is

warranted. This Court considered the factors to guide the

grant of bail in Ram Govind Upadhyay v. Sudarshan Singh

(2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh

Ranjan (2004) 7 SCC 528. In Prasanta Kumar Sarkar v.

Ashis Chatterjee (2010) 14 SCC 496, the relevant principles

were restated thus:

‘9. … It is trite that this Court does not, normally,

interfere with an order passed by the High Court

granting or rejecting bail to the accused. However, it is

equally incumbent upon the High Court to exercise its

discretion judiciously, cautiously and strictly in

compliance with the basic principles laid down in a

plethora of decisions of this Court on the point. It is well

settled that, among other circumstances, the factors to

be borne in mind while considering an application for

bail are:

(i) whether there is any prima facie or reasonable

ground to believe that the accused had committed

the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of

conviction;

(iv) danger of the accused absconding or fleeing if

released on bail;

(v) character, behaviour, means, position and

standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being

influenced; and

(viii) danger, of course, of justice being thwarted by

the grant of bail.’

8. In Mahipal v. Rajesh Kumar alias Polia (2020) 2 SCC

118, this Court opined as under:

9

2026:HHC:18425

‘16. The considerations that guide the power of an

appellate court in assessing the correctness of an order

granting bail stand on a different footing from an

assessment of an application for the cancellation of bail.

The correctness of an order granting bail is tested on

the anvil of whether there was an improper or arbitrary

exercise of discretion in the grant of bail. The test is

whether the order granting bail is perverse, illegal or

unjustified. On the other hand, an application for

cancellation of bail is generally examined on the anvil

of the existence of supervening circumstances or

violations of the conditions of bail by a person to whom

bail has been granted. …’

9. In Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak,

2023 INSC 761, this Court, in view of Dolat Ram v. State

of Haryana, (1995) 1 SCC 349; Kashmira Singh v. Duman

Singh, (1996) 4 SCC 693 and X v. State of Telangana,

(2018) 16 SCC 511, held as follows:

‘13. It is also required to be borne in mind that when a

prayer is made for the cancellation of the grant of bail,

cogent and overwhelming circumstances must be

present, and bail, once granted, cannot be cancelled in a

mechanical manner without considering whether any

supervening circumstances have rendered it inadvisable

to allow a fair trial. This proposition draws support

from the Judgment of this Court in Daulat Ram v. State

of Haryana (1995) 1 SCC 349, Kashmira Singh v.

Duman Singh (1996) 4 SCC 693 and XXX v. State of

Telangana (2018) 16 SCC 511.’

10. In XXX v. Union Territory of Andaman & Nicobar

Islands, 2023 INSC 767, this Court noted that the principles

in Prasanta Kumar Sarkar (supra) stood reiterated in

Jagjeet Singh v. Ashish Mishra (2022) 9 SCC 321.

11. The contours of anticipatory bail have been

elaborately dealt with by 5-Judge Benches in

Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC

565 and Sushila Aggarwal v. State (NCT of Delhi),

10

2026:HHC:18425

(2020) 5 SCC 1. Siddharam Satlingappa Mhetre v.

State of Maharashtra, (2011) 1 SCC 694 is worthy of

mention in this context, despite its partial

overruling in Sushila Aggarwal (supra). We are

cognizant that liberty is not to be interfered with easily.

More so when an order of pre-arrest bail already stands

granted by the High Court.

12. Yet, much like bail, the grant of anticipatory bail is

to be exercised with judicial discretion. The factors

illustrated by this Court through its pronouncements

are illustrative and not exhaustive. Undoubtedly, the

fate of each case turns on its own facts and merits.”

(emphasis supplied)

21. In Ajwar (supra), this Court also examined the

considerations for setting aside bail orders in terms

below:

“28. The considerations that weigh with the appellate

Court for setting aside the bail order on an application

being moved by the aggrieved party include any

supervening circumstances that may have occurred

after granting relief to the accused, the conduct of the

accused while on bail, any attempt on the part of the

accused to procrastinate, resulting in delaying the trial,

any instance of threats being extended to the witnesses

while on bail, any attempt on the part of the accused to

tamper with the evidence in any manner. We may add

that this list is only illustrative and not exhaustive.

However, the court must be cautious that at the stage of

granting bail, only a prima facie case needs to be

examined, and detailed reasons relating to the merits of

the case that may cause prejudice to the accused ought

to be avoided. Suffice it to state that the bail order

should reveal the factors that have been considered by

the Court for granting relief to the accused.

29. In Jagjeet Singh (supra) (2022) 9 SCC 321, a three-

judge bench of this Court has observed that the

power to grant bail under Section 439 Cr. P.C. is of wide

11

2026:HHC:18425

amplitude and the High Court or a Sessions Court, as

the case may be, is bestowed with considerable

discretion while deciding an application for bail. But

this discretion is not unfettered. The order passed must

reflect the due application of the judicial mind

following well-established principles of law. In the

ordinary course, courts would be slow to interfere with

the order where bail has been granted by the courts

below. But if it is found that such an order is illegal or

perverse or based upon utterly irrelevant material, the

appellate Court would be well within its power to set

aside and cancel the bail. (Also refer: Puran v. Ram

Bilas (2001) 6 SCC 338; Narendra K. Amin (Dr.) v. State

of Gujarat (2008) 13 SCC 584)” (emphasis supplied)

9. This position was reiterated in State of

Karnataka v. Sri Darshan, 2025 SCC OnLine SC 1702, wherein

it was observed:

(B) Cancellation of bail

18.10. As per Halsbury's Laws of England, the grant

of bail does not set the accused at liberty in the

absolute sense but merely shifts custody from the

State to the sureties. Consequently, cancellation of

bail entails an assessment of whether the accused

has abused the liberty so conferred.

18.11. In Dolat Ram v. State of Haryana (1995) 1 SCC

349, this Court delineated broad, though not

exhaustive, grounds justifying cancellation of bail,

including:

• Interference or attempt to interfere with the

due course of justice;

• Evasion of justice;

• Abuse of the concession of bail;

• Likelihood of the accused fleeing from justice.

12

2026:HHC:18425

18.12. In Abdul Basit v. Abdul Kadir Choudhary (2014)

10 SCC 754, this Court elaborated the circumstances

in which bail granted under Section 439(2) Cr. P.C.

may be cancelled, including where the accused:

• engages in similar criminal activity post-bail;

• interferes with or obstructs the investigation;

• tampers with evidence or influences witnesses;

• intimidates or threatens witnesses;

• attempts to abscond or evade judicial process;

• becomes unavailable or goes underground;

• violates the conditions imposed or evades the

control of sureties.

18.13. In Mahipal v. Rajesh Kumar (2020) 2 SCC 118,

Justice D.Y. Chandrachud explained:

“An appellate court is empowered to set aside a bail

order if it is found to be based on a misapplication of

legal principles or where relevant considerations

have been ignored. On the other hand, cancellation

of bail typically arises from post-bail conduct or

supervening circumstances.”

18.14. Finally, in Deepak Yadav v. State of U.P.,

Criminal Appeal No. 861 of 2022 (@ SLP (Crl.) No. 9655

of 2021) dated 20.05.2022, this Court reaffirmed that

bail already granted should not be cancelled in a

routine or mechanical manner. Only cogent and

overwhelming circumstances, which threaten the

fairness of the trial or the interest of justice, would

warrant such interference.

18.15. Thus, it is clear that while cancellation of bail

is a serious matter involving deprivation of personal

liberty, the law does permit annulment of a bail

order that is unjustified, legally untenable, or

passed without due regard to material

considerations. The distinction between annulment

13

2026:HHC:18425

of bail orders due to perversity and cancellation for

post-bail misconduct must be clearly understood

and applied, ensuring a careful, calibrated, and

constitutionally sound approach to the

administration of criminal justice.

19. At this juncture, it is apposite to refer to the

decision of this Bench in Pinki v. State of Uttar

Pradesh 2025 INSC 482, wherein the bail granted to

the accused therein was cancelled, after a detailed

consideration of the facts and the gravity of the

offence, namely, child trafficking, as well as the

legal principles. The Court underscored that while

personal liberty is a cherished constitutional value,

it is not absolute. Liberty must yield where it poses a

threat to the collective interest of society. No

individual can claim a liberty that endangers the life

or liberty of others, as the rational collective cannot

tolerate anti-social or anti-collective conduct.

Emphasizing that bail jurisprudence is inherently

fact-specific, the Court reiterated that each bail

application must be decided on its own merits, in

light of the well settled on its own merits, in light of

the well-settled parameters governing grant or

denial of bail……

10. It was submitted that the Court had not

considered the gravity of the offence while granting the

pre-arrest bail. This submission is only stated to be

rejected. Para-2 of the order specifically mentions that the

Court had considered the nature of the offence while

granting the pre-arrest bail. The Court had refrained from

giving the details to avoid prejudice to any person during

14

2026:HHC:18425

the trial. The FIR was lodged on 14.6.2023, and no arrest

was effected till the year 2026, which showed that the

custodial interrogation of the accused was not required.

The offences alleged against respondent No.2/accused were

triable by the Magistrate. The police had filed a status

report asserting that no recovery is to be effected from

respondent No.2/accused. All these circumstances weighed

with the Court while granting the pre-arrest bail, and it is

incorrect to say that the court had not considered the

gravity and the nature of the offence.

11. It was submitted that the custody of the accused

is necessary to obtain the specimen signatures. This

submission is only stated to be rejected. It was laid down by

this Court in Jatinder Kumar versus State of H.P. Latest HLJ

2009 (1) 278 HP that release on bail puts the person in the

custody of the Court, and his signatures can be taken under

Section 311A of the Cr.PC. It was observed:-

“5. It will not be correct to say that only because the

accused person is released on bail, he ceases to be in

the custody; therefore, the Magistrate would not be

competent to exercise his powers under Section 311-

A Cr.P.C. If the bail is granted, the reality is not

changed, and from the fact above, it cannot be said

15

2026:HHC:18425

that he is not a "person arrested for an offence". A

person released on bail is still considered to be

detained in the custody of the court through his

surety. He is under an obligation to appear before

the court whenever required or directed so to do.

Therefore, to that extent, his liberty is subject to

restraint. He is notionally in the custody of the

court, hence continues to be a "person arrested".

Therefore, the jurisdiction of the Magistrate to pass

the appropriate orders under Section 311-A of the

Code of Criminal Procedure, because the person

enlarged on bail is not affected at all. Hence, for the

reasons aforesaid, there is no hurdle to grant the

bail to the petitioner on this objection alone. It is

made clear that the powers of the Magistrate are not

at all affected in any manner to take his specimen

signatures, if it is thought expedient to do so.”

12. Therefore, the very basis of the petition that the

petitioner should be in actual police or judicial custody is

wrong, and the release on bail also amounts to custody

within the meaning of Section 311A of the Cr.PC; hence, the

submission that bail is required to be cancelled for

obtaining the specimen signatures is not acceptable.

13. It was submitted that respondent No.2/accused

intimidated the witnesses; however, the name of the

person who was so intimidated has not been mentioned.

The copy of any complaint made to the police has also not

16

2026:HHC:18425

been filed, therefore it is difficult to agree with the

submission that the petitioner intimidated the witnesses.

14. It was submitted that the misappropriated funds

are to be recovered, for which purpose the pre-arrest bail of

respondent No.2/accused is required. This submission will

not help the petitioner. 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

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

17

2026:HHC:18425

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

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.

18

2026:HHC:18425

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 438 CrPC

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 438 CrPC 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 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

19

2026:HHC:18425

money alleged to have been cheated. That is really

not the purpose and intent of the provisions for the

grant of bail.

15. Therefore, it is not permissible to arrest

respondent No.2/accused to enable the police to effect the

recovery of the money.

16. Hon’ble Supreme Court held in State of

Rajasthan v. Balchand, (1977) 4 SCC 308: 1977 SCC (Cri) 594:

1977 SCC OnLine SC 261 that the normal rule is bail and not

jail, except where the gravity of the crime or the

heinousness of the offence suggests otherwise. It was

observed at page 308:

2. The basic rule may perhaps be tersely put as bail,

not jail, except where there are circumstances

suggestive of fleeing from justice or thwarting the

course of justice or creating other troubles in the

shape of repeating offences or intimidating

witnesses and the like, by the petitioner who seeks

enlargement on bail from the Court. We do not

intend to be exhaustive but only illustrative.

3. It is true that the gravity of the offence involved is

likely to induce the petitioner to avoid the course of

justice and must weigh with us when considering

the question of jail. So also, the heinousness of the

crime….”

17. No other point was urged.

20

2026:HHC:18425

18. In view of the above, the present petition fails,

and it is dismissed.

19. 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.

(Rakesh Kainthla)

Judge

20

th

May, 2026

(Chander)