Himachal Pradesh High Court
Chandra Kanta Thakur vs State Of Himachal Pradesh on 27 January, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MPs(M) No. 174 & 175 of 2023 Decided on: 27.01.2023 .
1. Cr.MP(M) No. 174 of 2023:
Chandra Kanta Thakur ....Applicant
Versus
State of Himachal Pradesh ...Respondent
2. Cr.MP(M) No. 175 of 2023:
Shipra Mukherjee ....Applicant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Vacation Judge. Whether approved for reporting?1 For the applicant(s): Mr. Dheeraj K. Vashisht, Advocate.
For the respondent/State: Mr. Harinder Singh Rawat and Mr. Y.P.S. Dhaulta, Additional Advocates General, alongwith HC Anup, Police Station New Shimla, District Shimla, H.P. Virender Singh, Judge. (oral).
The above noted two bail applications are being disposed of by this common order, as both the applicants have filed the applications under Sections 438 of the Code of Criminal Procedure 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 28/01/2023 20:31:29 :::CIS 2(hereinafter referred to as 'Cr.P.C.') in the same FIR, i.e. FIR No. 67 of 2022, with Police Station New Shimla, District Shimla, H.P.
2. The applicants, by way of the above applications, filed .
under Section 438 Cr.P.C., sought a direction, from this Court, to the police/Investigating Officer, to release them on bail, in the event of their arrest, in case FIR No. 67 of 2022, dated 11.10.2022, registered under Sections 406, 420, 379 and 120B of the Indian Penal Code (hereinafter referred to as 'IPC'), with Police Station New Shimla, District Shimla, H.P.
3. to According to the applicants, the FIR in question has been registered on the complaint of Bhajan Dev Negi, which was preferred before the Court under Section 156(3) Cr.P.C.. According to the applicants, they are innocent persons and have falsely been named, as accused in the case. The applicants have not committed any offence(s) and the case has been registered at the instance of the complainant, just to harass them. According to them, the lease premises has already been handed over to the wife of the complainant. The applicants have given certain undertakings, for which, they are ready to abide, in case any direction is issued under Section 438 Cr.P.C. As such, a prayer has been made to allow the applications.
4. When put on notice, police filed the status report, disclosing therein that a copy of order, passed under Section 156(3) Cr.P.C. has been received from the Court of learned Judicial Magistrate ::: Downloaded on - 28/01/2023 20:31:29 :::CIS 3 Fist Class, Court No. 5, Shimla. The said order has been reproduced in the status report, as also reproduced hereunder:
"1. This order shall dispose of an application filed by .
the applicant/complainant (herein after called as complainant) under section 156 (3) of Cr.P.C. for directing the SHO New Shimla to lodge an FIR against the respondents under the appropriate Sections of IPC and to investigate the case in accordance with law. 2. It is averred in the application that the applicant/complainant is the owner of Subhita B & B Bhagwat Nagar, Lower Khalini, Shimla (hereinafter referred as suit premises). It is contended that in the year 2018 respondent No. 2 had approached the complainant showing his willingness to take the suit premises on lease basis whereupon the complainant had agreed to lease out the suit premises in the favor of respondent No. 2 on certain terms and conditions. An agreement with respect to the same was executed between the parties on 16.11.2018 and the lease of suit premises was created for five years i.e. w.e.f. r 01.12.2018 to 30 11.2023. It is submitted by the complainant that the lease agreement was made in the name of the sister of respondent No. 2 I.e. Smt. Shipra Mukhrjee (respondent No. 1) as she being a female is entitled for tax exemption as per the H.P. Government notification. It is contended by the complainant that after executing the lease agreement the suit premises was handedover to respondent No. 2. It is contended that recently the respondent 2, through his workers had handedover the keys of the leased Demises to the wife of the complainant with the promise that they will return back, however, failed to do so and despite of repeated requests made by the complainant neither respondent No. 2 nor respondent No. I had returned back to take the possession of the suit premises. It is further contended that when the complainant and his wife opened the lease premises it was found by them that most of the items present in the premises were adversely damaged and many of them which were mentioned in the inventory 4. It is further contended that thereafter a written complaint was preferred by the complainant to the New Shimla Police Station and also to the Superintendent of Police but they have failed to initiate any action against the respondent and had also to refuse to register an FIR against the respondents. The allegations levelled by the complainant against the respondents is that the respondents have intentionally and deliberately left the suit premises with the malafide intention to cheat and harass the they have misappropriated the suit complainant and further ::: Downloaded on - 28/01/2023 20:31:29 :::CIS 4 premises by causing adverse damage to the articles present in the leased premises. It is contended that respondent No. 1 & 2 are influential persons running their business in Shimla at Shree Nomah Residency at Kinnaur and at Hotel Himdari in Sangla and one Nature Camp at Chitkul, thus, being financially and .
politically sound and are preventing the state machinery to initiate any action against them. 5. On the perusal of the documents placed on record it appears that the complainant had entered into a lease deed with respondent No. 1 with respect to one premises i.e. Ravi Cottage, Bhagwati Nagar Khalini Shimla, consisting of six rooms, with one room set for the purpose of staff and kitchen along with dining space and space for reception, for running B & B Unit under the name and style of Subhita B & B. Further, it transpires that the lease was executed for the period of five years i.e. w.e.f. 01.12.2018 to 30.11.2023. Alongwith the lease deed with respect suit premises an inventory of the articles handed over to respondent No. 2 is annexed bearing the signatures of both the parties ie. lessor and lessee. In order to substantiate the contention of the complainant that the respondents had misappropriate the suit premises thereby causing damage to the articles mentioned in the inventory with a malafide intention to cause wrongful loss to the complainant is duly corroborated by the annexed with the complaint. Further, the complainant had placed on record, a written complaint dated 20.04.2022 addressed to the SHO, PS. New Shimla along with another complaint dated 07.07.2022 addressed to the Superintendent of Police Shimla, showing that the police authorities have failed to initiate any action against the respondents and hence, the present application. 6. I have heard the complainant and gone through the records carefully. 7. The application is duly supported an affidavit of the complainant. Perusal of the averments of the application shows that serious allegations in a cognizable case have been levelled by the complainant against the respondents. The matter was reported by the complainant to the SHO New Shimla as well as to the Superintendent of Police, Shimia. However, as alleged, no action on the aforesaid complaint was taken. The complainant has complied with the directions of the Hon'ble Apex Court laid down in case titled as Priyanka Srivastava versus State of U.P (2015) 6 SCC 287. Furthermore, as per the directions of the Hon'ble Supreme Court in Lalita Kumari versus State of U.P (2014) 2 SCC 1, the registration of FIR is mandatory in cases where the alleged are cognizable in nature Since the matter on record deals with the commission of cognizable offences ::: Downloaded on - 28/01/2023 20:31:29 :::CIS 5 and the same is alleged to have been committed Therefore, the SHO New Shimla is directed to lodge an FIR in the Present matter and to investigate the matter duly in accordance with law. Copy of application be sent to SHO, New Shimla for compliance."
.
5. On the basis of the above facts, police registered a case under Sections 406, 420, 379 and 120B IPC and investigation was further entrusted to HHC Richa Sharma No. 99.
6. In the status report, filed on 20.01.2023, it has been mentioned that Special Investigating Team has been constituted and the said team has visited the house of the applicants, in West Bengal, but, both the applicants were not found there.
7. However, in the status report, filed today, it has been mentioned that the applicants have joined the investigation on 23.01.2023. During the investigation, the applicants, according to the status report, have disclosed that they are working with Thakur Group of Hotels/Tour and Travel. In the year 2018 they had obtained the premises of Bhajan Dev Negi for five years in the name of applicant Shipra Mukherjee. They have engaged one Prashat Adhikari as care taker and one Devender as cook. Both of them were looking after the business from Calcutta and after some time they used to come to Shimla. Prior to imposition of lockdown, due to corona pandemic, they had paid rent, as per the lease deed to the complainant Bhajan Dev Negi, but thereafter, due to the imposition of lockdown, they have closed their business. In this regard, they have informed Bhajan Dev ::: Downloaded on - 28/01/2023 20:31:29 :::CIS 6 Negi (complainant) and their care taker Prashant Adhikari had handed over the key of the premises to the wife of the complainantBhajan Dev Negi and as per the checklist, all the articles were there in the .
premises. However, due to the lockdown they neither came to Shimla, nor they handed over the articles, as per the checklist.
8. Lastly, it has been mentioned in the status report that complainantBhajan Dev Negi has requested to join the investigation in the month of February, 2023, and it is the further case of the police that when the complainant will join the investigation, then further investigation will be conducted, hence, a prayer has been mad by the learned Additional Advocate General, appearing on behalf of the State, to dismiss the bail applications.
9. On 20.01.2023, after receiving the initial status report, interim direction was given to the Investigating Officer of the case, to release the applicants, on bail, in the event of their arrest, in this case, subject to their furnishing personal bond, in the sum of Rs.20,000/ each, with one surety each, to the satisfaction of the Investigating Officer and both the applicants were directed to join the investigation on 23.01.2023 at 10:00 a.m.
10. Today, supplementary status report has been filed, in which, apart from reiterating their earlier stand, it has been mentioned that when the complainant will join the investigation, further investigation of the case will be conducted. Both the bailapplicants ::: Downloaded on - 28/01/2023 20:31:29 :::CIS 7 were arrested and released on bail, as per the direction of this Court.
Apart from this, nothing has been mentioned by the police, as to why the relief, as sought, by the bailapplicants in the present .
case, should not be given to them. This has been done, despite of the specific directions issued by this Court to the Director General of Police, in Cr.MP(M) No. 112 of 2023, titled as Bobby Sharma vs. State of H.P.. When, the status report is silent qua the fact that the police does not require the custody of the applicants, for interrogation, then interim bail is also liable to be confirmed, as pretrial punishment is prohibited under the law.
11. Considering all the above discussed facts and also the status report/supplementary status report, there is no legal hesitation to this Court to confirm the interim order, in favour of the bail applicants. Consequently, interim order dated 20.01.2023 is made absolute, therefore, it is ordered that the applicants be released on bail, in the event of their arrest, in case FIR No. 67 of 2022, dated 11.10.2022, registered under Sections 406, 420, 379 and 120B IPC, with Police Station New Shimla, District Shimla, H.P., on their furnishing personal bond to the tune of `20,000/ (rupees twenty thousand only) each with one surety each in the like amount to the satisfaction of the Investigating Officer. The bail is granted subject to the following conditions:
::: Downloaded on - 28/01/2023 20:31:29 :::CIS 8(i) That the applicants will join investigation of the case as and when called for by the Investigating Officer in accordance with law;
(ii) That the applicants will not leave India without .
prior permission of the Court;
(iii) That the applicants will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Investigating Officer or Court; and
(iv) That the applicants shall regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application.
12. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these observations, are confined, only, to the disposal of the present bail applications.
13. The applicants are directed to move regular bail application, when chargesheet will be filed in the learned Trial Court.
14. It is made clear that the respondentState is at liberty to move an appropriate application, in case, any of the bail conditions, as enumerated above, is found violated by the applicants.
15. Applicants may produce a downloaded copy of the order, passed by the Court, before the concerned authority/police/Investigating Officer, and the said authority/police/Investigating Officer shall not insist for the certified ::: Downloaded on - 28/01/2023 20:31:29 :::CIS 9 copy of order, rather, passing of order can be verified from the web page of this Court.
The petitions stand disposed of in the aforesaid terms.
.
The Registry is directed to place a copy of this order in the connected matter.
( Virender Singh )
27th
January, 2023 Vacation Judge
(virender)
r to
::: Downloaded on - 28/01/2023 20:31:29 :::CIS