Himachal Pradesh High Court
Sohan Lal Gupta & Another vs State Of Himachal Pradesh on 9 October, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 2197 of 2019 Date of Decision: 09th October, 2020 .
Sohan Lal Gupta & Another ...Petitioners.
Versus State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 Yes.
For the petitioners : Mr. Shivank Singh Panta, Advocate.
For the respondent : Mr. Nand Lal Thakur, Additional
r Advocate General.
Anoop Chitkara, Judge.
The petitioners apprehending imminent arrest on being arraigned as accused have come up before this Court under section 438 CrPC, seeking anticipatory bail.
2. Based on the complaint of Kangra Central Co-operative Bank, the State Vigilance and Anti Corruption Bureau, Dharamshala, District Kangra registered FIR No. 11 of 2019, dated 22.11.2019, under Sections 420, 467, 468, 471 & 34 of Indian Penal Code, 1860, (IPC), in Police Station, State Vigilance and Anti Corruption Bureau, Dharamshala, District Kangra, Himachal Pradesh, disclosing cognizable and non-bailable offences.
3. The petitioners' criminal history relating to the offences prescribing sentence of greater than seven years of imprisonment or when on conviction, the sentence imposed was more than three years: The contents of the petition and the status report do not reveal any criminal history.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 09/10/2020 20:19:43 :::HCHP 24. Briefly, the allegations against the petitioners were siphoning off the money as well as its laundering by the accused-petitioners.
5. Mr. Shivank Singh Panta, learned counsel for the petitioners .
has argued that the accused are innocent and because of slow- down in economy, his business virtually collapsed, leading to losses, and now the Bank is converting such business loss into criminal offences. Learned counsel further submits that the petitioners have regularly joined investigation from the date of interim protection, which were given on 29.11.2019 till date. He further submits that irrespective of higher age of the petitioner No.1, he preferred joining investigation over his health, knowing fully well that he is more vulnerable to Covid-19 infection. He further submits that they are permanent residents of the addresses, which are given to the investigator.
6. Mr. Nand Lal Thakur, learned Additional Advocate General does not dispute the fact of the petitioners joining investigation.
However, he has vehemently argued that the money has been siphoned off. He further submits that this bail order should not be a hindrance in launching any prosecution by enforcement Director for money laundering and if this Court grants bail, such order must be subject to conditions, especially of not repeating the criminal activities.
7. In the present case, the maximum sentence imposable for the offences mentioned in FIR attracts the application of the directions passed in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, (Para 13), wherein Hon'ble Supreme Court directed all the State Governments to instruct its police officers not to arrest automatically when where the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
::: Downloaded on - 09/10/2020 20:19:43 :::HCHP 38. Given the age of petitioner No.1 and the fact that the petitioners are joining investigation for the last around 11 months, they are entitled to grant bail.
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9. The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing mild conditions. In Sushila Aggarwal versus State (NCT of Delhi) & Another, (2020) 5 SCC 1,, Para 92, the Constitutional bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.
10. Given the above reasoning, the Court is granting bail to the petitioners, subject to the imposition of following conditions, which shall be over and above, and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC. Consequently, the present petition is allowed, and in the event of arrest, the petitioners shall be released on bail in the FIR mentioned above, on their furnishing a personal bonds of INR 1,00,000/, (INR one lac only) each, with one surety each for INR 1,00,000 (INR one lac only), to the satisfaction of the Investigator/ SHO of the concerned Police Station. The furnishing of bail bonds shall be deemed acceptance of all stipulations, terms, and conditions of this bail order:
a) The Attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioners along with the phone number(s), WhatsApp number (if any), email (if any), and details of personal bank account(s) (if available).
b) The petitioners shall join investigation as and when called by the Investigating officer or any superior officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioners shall not ::: Downloaded on - 09/10/2020 20:19:43 :::HCHP 4 be called before 8 AM and shall be let off before 5 PM. The petitioners shall not be subjected to third-degree methods, indecent language, inhuman treatment, etc. .
c) The petitioners shall join and cooperate in the investigation, and failure to do so shall entitle the prosecution to seek cancellation of the anticipatory bail granted by the present order. (Kala Ram v. State of Punjab, 2018 (11) SCC
350).
d) The petitioners shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
e) Once the trial begins, the petitioners shall not, in any manner, try to delay the trial. The petitioners undertake to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioners shall attend the trial on each date, unless exempted.
f) There shall be a presumption of proper service to the petitioners about the date of hearing in the concerned Court, even if it takes place through SMS/ WhatsApp message/ E-Mail/ or any other similar medium, by the Court.
g) In the first instance, the Court shall issue summons and may inform the Petitioners about such summons through SMS/ WhatsApp message/ E-Mail.
h) In case the petitioners fail to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the accused to know the date, the Court may, if it so desires, also inform the petitioners about such Bailable warrants through SMS/ WhatsApp message/ E-
Mail.
::: Downloaded on - 09/10/2020 20:19:43 :::HCHP 5i) Finally, if the petitioners still fail to put in an appearance, then the concerned Court may issue Non-Bailable warrants to procure the petitioners' presence and send the petitioners to .
the Judicial custody for a period for which the concerned Court may deem fit and proper.
j) In case of Non-appearance, then irrespective of the contents of the bail bonds, the petitioners undertake to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioners' failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioners. However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioners and it relates to the exercise undertaken solely to arrest the petitioners in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.
k) The petitioners shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, within thirty days from such modification, to the police station of this FIR, and the concerned Court, if such stage arises.
l) The petitioners shall abstain from all criminal activities. If done, then while considering bail in the fresh FIR, the Court shall take into account that even earlier, the Court had cautioned the accused not to do so.
m) During the trial's pendency, if the petitioners repeat the offence or commits any offence where the sentence prescribed is more than seven years, then the State may move an appropriate application for cancellation of this bail.
::: Downloaded on - 09/10/2020 20:19:43 :::HCHP 6n) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may apply for cancellation of bail of the petitioner. Otherwise, the bail bonds .
shall continue to remain in force throughout the trial following the mandate of the Constitutional Bench in Sushila Aggarwal's case, wherein the Constitutional bench held that anticipatory bail can continue until the end of the trial; however, the Courts can limit the bail period's tenure if unique or peculiar features require.
10. The learned Counsel representing the accused and the Officer in whose presence the petitioners put signatures on personal bonds shall explain all conditions of this bail order to the petitioners, in vernacular and if not feasible, in Hindi or English.
11. In case the petitioners find the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioners may file a reasoned application before this Court, and after taking cognizance, even before the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.
12. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation in accordance with law.
13. The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in any other case(s) registered against the petitioners.
14. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.
::: Downloaded on - 09/10/2020 20:19:43 :::HCHP 715. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.
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16. It is clarified that this order shall not impose any restriction on the investigator to launch any inquiry or investigation for money laundering under relevant provisions of Law.
The petition stands allowed in the terms mentioned above.
(Anoop Chitkara), Judge.
October 09, 2020 (ps) ::: Downloaded on - 09/10/2020 20:19:43 :::HCHP