Himachal Pradesh High Court
Bhuvneshwar Kumar vs State Of Himachal Pradesh on 24 January, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 2028 of 2019 .
Reserved on : January 4 , 2020
Date of Decision : January 24 , 2020.
Bhuvneshwar Kumar ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Vacation Judge.
Whether approved for reporting?1 No. For the petitioner : Mr. C.N. Singh, Advocate, for the petitioner. For the respondent : Mr. Nand Lal Thakur, Additional Advocate General and Mr. Rajat Chauhan, Law Officer, for the respondent/State.
Anoop Chitkara, Vacation Judge.
The petitioner apprehending his imminent arrest on being arraigned as accused, in FIR number 58 of 2018, dated Jun 20, 2018, registered under Sections 420, 467, 468, 471, 120B read with Section 34 of Indian Penal Code, 1860, in the file of Police Station Bharmour, District Chamba, HP, disclosing non-bailable offences, came up before this Court under section 438 CrPC, seeking anticipatory bail.
2. The status report filed. I have heard counsel for the parties and seen the status report(s) as well as the police file to the extent it was necessary 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 24/01/2020 20:26:26 :::HCHP 2for deciding the present petition, and the police file was duly returned through the Counsel appearing for the State.
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3. The counsel for the petitioner states that the accused had joined the investigation as and when the Investigating Officer so directed. Learned Additional Advocate General did not dispute this averment.
4. FACTS:
The gist of the case, apposite to decide the present bail petition, discloses the following factual matrix:
(a) Complainant Chatro Ram entered into a criminal conspiracy with accused Sanjay Kumar and paid him a sum of ` 7 lacs for getting his sons Pankaj Sharma and Pawan Kumar appointed as Civil Engineers in Himachal Pradesh Public Works Department. The said accused Sanjay Kumar in connivance with one Rohit Kaistha issued fake appointments letters to his sons and when his sons went to join duties they came to know that they have been duped.
(b) After that the complainant Chatro Ram filed complaint against accused Sanjay Kumar for cheating. It was just like pot calling the kettle black. It led to the registration of FIR and police arrested accused Sanjay Kumar which further led to the arrest of accused Rohit Kaistha. After that the police also found the role of two more persons Deepak Bhardwaj and Abhinav Kumar.
(c) During investigation the SHO of Police Station Bharmour, sent notice under Section 160 CrPC to Bhuvneshwar Kumar the present petitioner telling him that they are suspecting his role and involvement in the aforesaid crime.::: Downloaded on - 24/01/2020 20:26:26 :::HCHP 3
(d) On receipt of such notice the petitioner has come up before this Court by filing the present bail petition.
5. ANALYSIS AND REASONING:
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(i) The status report reveals that petitioner Bhuvneshwar Kumar was working as an Accountant of accused Rohit Kaistha.
Police also detected that accused Rohit Kaistha would deposit the ill-gotten money in the account of the petitioner. Be that as it may, the investigation is not conclusive about the mens rea of petitioner Bhuvneshwar Kumar. The only evidence is the statement of co-accused which is legally not admissible unless done by following Section 306 CrPC or Section 30 of the Indian Evidence Act which is not in the present case.
(ii) Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, accused fleeing from justice, hampering the investigation, and doing away with witnesses. The Court is under the Constitutional obligation to safeguard the interests of the victim, the accused, the society, and the State.
JUDICIAL PRECEDENTS:
6. In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565 : A Constitutional bench of Supreme Court holds, "30....It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."
::: Downloaded on - 24/01/2020 20:26:26 :::HCHP 47. In Siddharam Satingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694, Supreme Court holds, Relevant consideration for exercise of the power:
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"111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Criminal Procedure Code by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences.
v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the ::: Downloaded on - 24/01/2020 20:26:26 :::HCHP 5 case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of .
common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
8. Given the above reasoning, in my considered opinion, the custodial investigation of the petitioner/accused is not going to serve any purpose whatsoever, and I am inclined to grant bail on the following grounds, but subject to stringent conditions:
(i) The petitioner had joined the investigation and co-operated.
(ii) In the status report, there is no mention of previous criminal history of the bail petitioner.
(iii) The petitioner is a permanent resident of address mentioned in the memo of parties. Therefore, his presence can always be secured.
(iv) I am of the considered view that, prima facie, petitioner has made out a case for grant of bail.::: Downloaded on - 24/01/2020 20:26:26 :::HCHP 6
9. Consequently, the present petition is allowed. The interim order dated Nov 6, 2019, as extended from time to time, is made absolute, on .
the terms and conditions as mentioned therein, apart from the following additional conditions:
(a) The petitioner undertakes to attend the trial.
(b)The petitioner shall appear before the Court which issues the summons or warrants, and shall furnish fresh bail bonds to the satisfaction of such Court, if such Court directs to do so.
(c) The petitioner shall join the investigation as and when called by the Investigating Officer. However, whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the accused shall not be called before 9 AM and shall be let off before 5 PM.
(d)The petitioner shall co-operate in the investigation.
(e)The petitioner shall not hamper the investigation.
(f) The petitioner undertakes not to threaten or browbeat or use any pressure tactics on the victims, complainant, and witnesses,
(g)The petitioner shall neither influence nor try to control the investigating officer, in any manner whatsoever.
(h)The petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence.::: Downloaded on - 24/01/2020 20:26:26 :::HCHP 7
(i) In case the petitioner commits any offence prescribing the sentence of imprisonment of more than seven years, within thirty days of knowledge of such FIR, the petitioner shall .
intimate SHO of the present police station, with all the details of the present FIR as well as the new FIR. In such a situation, it shall be open for the State to apply to this Court for cancellation of this bail, if it deems fit and proper.
(j) Within 30 days from today, the petitioner shall sell, or surrender, all firearms along with ammunition, and arms licenses, if any, to the authority which had given such permission.
10. In case the petitioner finds the bail condition(s) as violating fundamental or other right, or any human right, or faces any other difficulty due to any condition, then, the petitioner may file a reasoned application for modification of such term(s).
11. The present bail order is only for the FIR mentioned above. It shall not be construed to be a blanket order of bail in all other cases, if any, registered against the petitioner.
12. 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.
13. Petition stands allowed in the terms mentioned above.
Copy dasti.
(Anoop Chitkara), Vacation Judge.
January 24 , 2020 (PK) ::: Downloaded on - 24/01/2020 20:26:26 :::HCHP