Himachal Pradesh High Court
Abhishek Kumar vs State Of Himachal Pradesh on 2 May, 2024
IN THE HIGH COURT OF HIMACHAL PRADESHAT SHIMLA Cr. MP(M) No.120 of 2024 Decided on: 2nd May, 2024 .
__________________________________________________________ Abhishek Kumar ...Petitioner Versus State of Himachal Pradesh ...Respondent Coram Hon'ble Mr. Justice Ranjan Sharma, Judge 1Whether approved for reporting?
For the petitioner:
r to No
Mr. Ashok Kumar, Advocate vice
Mr. Sangram Singh Chandel,
Advocate.
For respondent: Mr. J.K. Sharma, Additional
Advocate General.
Ranjan Sharma, Judge(Oral)
The bail petitioner has come up before this Court seeking pre-arrest bail under Section 438 Cr.P.C., originating from FIR No.212/2021 dated 12.07.2021, registered in Police Station Nalagarh, District Solan, [H.P.] under Section 420 of the Indian Penal Code. On 11.01.2024, this Court had granted interim bail on the basis of the averments made in the 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 31/05/2024 20:30:00 :::CIS -2-bail application with direction to the bail petitioner to furnish the personal bond with surety to the satisfaction of the Arresting Officer and with the .
further direction to join the investigation.
2. The matter was then listed on various dates and on filing of the status report dated 01.02.2024, this Court had passed an order on 04.03.2024 directing the State Authorities to file a fresh status report, as to whether the associating in the investigation or not.
r petitioner has been
3. In terms of order dated 04.03.2024, the State Authorities had filed a fresh status report, on the instructions of SHO, Police Station Nalagarh and copy of this status report and earlier status report were furnished to learned counsel for the petitioner.
4. The matter was then listed on 05.04.2024, whereby the Investigating Officer had brought the factum of the bail petitioner, not joining the investigation despite being called for the same. These facts are borne out in the status report dated 02.04.2024.
5. In view of the specific stand, so taken by the ::: Downloaded on - 31/05/2024 20:30:00 :::CIS -3- Investigating Authorities that the bail petitioner was not participating in the investigation, this Court had passed an order on 18.04.2024, directing the bail .
petitioner to appear before this Court and also to appear before the Investigating Officer in the interregnum. The matter was then listed on 29.04.2024, on which date fresh status report dated 28.04.2024 was filed by the State Authorities, indicating that despite several notices to the bail petitioner to join the investigation, the bail petitioner was not forthcoming. The last notice dated 20.04.2024, was sent to the bail petitioner through speed post under Section 41-A of Cr.P.C., but despite that he has not jointed the investigation till date.
6. In view of the aforesaid circumstances and the conduct of the bail petitioner, the matter was listed on 29.04.2024, when this Court had passed the following orders:-
"Despite the earlier orders dated 05.04.2024 and 18.04.2024 passed by this Court, the petitioner- accused [Abhishek Kumar] has not joined the investigation before Investigating Officer, Nalagarh, till day.
Even, the bail-petitioner [Abhishek Kumar], has ::: Downloaded on - 31/05/2024 20:30:00 :::CIS -4- not appeared before this Court on 18.04.2024 and even today (on 29.04.2024), in terms of Section 438 (1B) Cr.P.C.
2. Even, a perusal of the Status Report dated 28.04.2024, furnished to this Court [Taken on .
record] indicates that despite several notice under Section 41-A of Cr.P.C, the bail-petitioner has not appeared before the Investigating Officer on 20.04.2024.
At this stage, learned vice counsel prays for adjournment. Prayer allowed, as not opposed. List the matter on 2nd May, 2024."
7. Besides the above conduct of the bail petitioner, it is notable that in addition to the non-
cooperative conduct of the bail petitioner, as referred to above, the status report reveals that the bail petitioner [Abhishek Kumar] has no case on merits also for the reason that the prima facie accusation is made out against him and there are reasonable grounds to prima facie belief that the accusation exist against him which is clear from the material on record in the status report including the CDR and the IMC details and other material. Moreover, since the petitioner is involved in the commission of the offence under Section 420 and 120-B of Indian Penal Code whereby he has doped the complainant [Om Parkash] ::: Downloaded on - 31/05/2024 20:30:00 :::CIS -5- of Rs.7,00,000/- [Rupees Seven Lakh] by cheating and by dishonestly inducing the complainant from delivering the aforesaid amount online [bank account .
including Paytm] in the account so furnished to the complainant [Om Parkash], by the bail petitioner and others collectively, who acted in conspiracy with each other.
8. For ready reference, Section 420 and 120-B r to of Indian Penal Code, are read as under:-
"420. Cheating and dishonestly inducing delivery of property.--
Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
120B. Punishment of criminal conspiracy-
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 1 [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine ::: Downloaded on - 31/05/2024 20:30:00 :::CIS -6- or with both."
Therefore, on merit also the accusation is writ large and the bail petitioner is not entitled to the .
concession of bail. Further the status report reveals that the bail petitioner [Abhishek Kumar], had been operating from different locations at different times, not only in Himachal Pradesh, but from other States by himself or at his instance by other incumbents, so as to dope the person like the complainant [Om Parkash], as referred to above. Though this Court on 11.01.2024, had granted the interim bail, but after receipt of the status reports dated 01.02.2024, 19.03.2024, 02.04.2024, 17.04.2024 and the last status report dated 28.04.2024, collectively points out the prima facie accusation against the bail petitioner and therefore, keeping in view the gravity of the offence, as the bail petitioner has resorted to doping the people by cheating them and such other incumbents, therefore, this Court is not inclined to extend the concession of bail to the bail petitioner.
Moreover, there is every likelihood that the bail petitioner on being granted the bail shall flee away ::: Downloaded on - 31/05/2024 20:30:00 :::CIS -7- from the investigation and the trial as he is a resident of Village Isapur of Tehsil Bareilly, Uttar Pradesh and there is every likelihood that the bail petitioner may .
tamper with the evidence and the witnesses or shall cause inducement, threat or promise to the complainant [Om Parkash] or his family members.
In view of the larger societal interest also, the claim for bail is dismissed.
9. Today Mr. Ashok Kumar, Advocate, on instructions of the original counsel Mr. Prikshit Rathour and Mr. Sangram Singh Chandel, Advocates, states at the bar that the bail petitioner [Abhishek Kumar], is neither coming forth in imparting instructions, nor he is in touch with the counsels, as referred to above, therefore, in these circumstance, a prayer for withdrawing the instant bail application has been made.
10. The prayer for withdrawing the instant bail petition is also not opposed by the Learned State Counsel also. That being so and keeping in view the conduct of the bail petitioner, this Court is not inclined to extend any concession of enlargement on bail in ::: Downloaded on - 31/05/2024 20:30:00 :::CIS -8- favour of the bail petitioner. Accordingly, in view of the prayer for withdrawing the instant petition, the instant petition is permitted to be withdrawn and the interim .
orders dated 11.01.2024, shall stand vacated.
11. Consequent upon the passing of this order, withdrawing the bail petition and the vacation of the interim order dated 11.01.2024, this Court orders the cancellation of the personal and surety bonds of the r to bail petitioner [Abhishek Kumar], forthwith.
In view of the orders passed today, this Court directs the State Authorities/Police to take consequential action for arresting the petitioner immediately.
(Ranjan Sharma) Judge May 02, 2024 (Chiranjeev) ::: Downloaded on - 31/05/2024 20:30:00 :::CIS