Himachal Pradesh High Court
Gopal Chauhan vs Non- Applicant on 5 May, 2015
Author: P.S.Rana
Bench: P.S.Rana
IN THE HIGH COURT OF HIMACHAL PRADESH
.
SHIMLA:
Cr.MP(M) No. 367 of 2015.
Order reserved on: 1.5.2015.
Date of Order: May 5,2015.
Gopal Chauhan. .....Applicant.
State of Himachal Pradesh. to
Versus:
.......Non- applicant.
Coram:
The Hon'ble Mr.Justice P.S.Rana, Judge.
Whether approved for Reporting?1yes.
For the applicant: Mr. Ravinder Singh Jaswal,
Advocate.
For non-applicant . Mr. M.L.Chauhan, Addl. Advocate
General.
P.S.Rana, Judge.
ORDER:Present application is filed under Section 438 of the Code of Criminal Procedure 1973 for grant of anticipatory bail in connection with case FIR No. 26 of 2014 dated 1 Whether reporters of Local Papers may be allowed to see the judgment?yes.
::: Downloaded on - 15/04/2017 18:06:43 :::HCHP 210.7.2014 registered under Sections 420, 465 and 471 of the .
Indian Penal Code at Police Station Jubbal District Shimla Himachal Pradesh.
2. It is pleaded that applicant is an agriculturist and apple merchant. It is further pleaded that service of complainant namely Bhupinder Singh son of Late Sh Roop Chand resident of Mandhol Tehsil Jubbal District Shimla HP was hired for transportation of 130 boxes of apples from Matasa (Jubbal) to Solan in the month of July and August, 2014. It is further pleaded that apple boxes transported in the vehicle were found lying on the road between Kharapathar and Kaina Kenchi road due to loosing of rope of the truck. It is further pleaded that boxes were further re-
loaded in the same vehicle. It is further pleaded that as the apple boxes were got damaged the parties arrived into a compromise that complainant would compensate applicant to the extent of damage caused to the applicant. It is further pleaded that complainant just to avoid the liability towards applicant filed a false criminal complaint against applicant. It is further pleaded that allegations leveled by the complainant against the applicant are without any basis. It is further ::: Downloaded on - 15/04/2017 18:06:43 :::HCHP 3 pleaded that applicant is innocent. Prayer for acceptance of .
anticipatory bail application sought.
3. Per contra police report filed. There is recital in police report that applicant Gopal Chauhan has also filed counter FIR No.61 of 2012 dated 5.10.2012 under Section 407 IPC against complainant. There is further recital in police report that applicant Gopal Chauhan has also submitted carbon copy of G.R builty during investigation of FIR No.61 of 2012 and thereafter cancellation report was submitted before learned Judicial Magistrate Ist Class Jubbal which was accepted by learned Judicial Magistrate Ist Class Jubbal. There is recital in police report that carbon copy of G.R.builty was sent to FSL Junga for comparison of signatures and it was found that complainant Bhupinder Thakur had not signed in the carbon copy of G.R. builty and his signatures were obtained through some other persons.
There is further recital in police report that applicant had joined investigation in the present case. There is further recital in police report that applicant will threaten the prosecution witness. Prayer for rejection of anticipatory bail application sought.
::: Downloaded on - 15/04/2017 18:06:43 :::HCHP 44. Following points arise for determination in the .
present bail application:
(1) Whether bail application filed under Section 438 of the Code of Criminal Procedure 1973 is liable to be accepted as mentioned in memorandum of grounds of bail application. (2) Final Order.
5. Court heard learned Advocate appearing on behalf of applicant and Court also heard learned Additional Advocate General appearing on behalf of State.
Finding upon Point No.1.
6. Submission of learned Advocate appearing on behalf of the applicant that applicant is innocent and he has been falsely implicated in the present case cannot be decided at this stage. Same fact will be decided when case shall be decided on its merits by learned trial Court after giving due opportunity of hearing to both the parties to lead evidence in support of their case.
7. Another submission of learned Advocate appearing on behalf of the applicant that custodial investigation of the applicant is not essential in the present case and on this ground anticipatory bail application filed by ::: Downloaded on - 15/04/2017 18:06:43 :::HCHP 5 applicant be allowed is accepted for the reason hereinafter .
mentioned. It is well settled law that at the time of granting bail following factors should be considered such as (i) Nature and seriousness of offence (ii) The character of the evidence
(iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State (Delhi Administration. Also see AIR 1962 SC 253 titled The State Vs. Captain Jagjit Singh. It was held in case reported in 2012 Cri.L.J 702 titled Sanjay Chandra Vs. Central Bureau of Investigation that object of bail is to secure the appearance of the accused person at his trial and it was held that object of bail is not punitive in nature. It was held that bail is rule and committal to jail is exception. It was also held that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution of India. It was held that it is not in the interest of justice that accused should be kept in jail for indefinite period. In the present case there is no ::: Downloaded on - 15/04/2017 18:06:43 :::HCHP 6 recital in police report that custodial investigation of the .
applicant is essential in the present case. It is well settled law that accused is presumed to be innocent till proven guilty by the competent Court of law. Court is of the opinion that if applicant is released on bail at this stage then interests of the general public or the State will not be adversely effected because there is no recital in police report that custody of the applicant is necessary for investigation in present case.
8. Submission of learned Additional Advocate General that if the applicant is released on bail then applicant will induce and threat prosecution witness and on this ground bail application be rejected is devoid of any force for the reason hereinafter mentioned. Court is of the opinion that conditions will be imposed in the bail order that applicant will not induce or threat prosecution witnesses. If applicant will flout terms and conditions of bail order then prosecution agency or investigating agency will be at liberty to file application for cancellation of bail in accordance with law. Point No.1 is decided in affirmative.
::: Downloaded on - 15/04/2017 18:06:43 :::HCHP 7Point No.2 (Final order).
.
9. In view of my above findings on point No.1 anticipatory bail application filed by applicant is allowed and interim order dated 10.4.2015 is made absolute with all terms and conditions mentioned in interim order dated 10.4.2015. Observation made hereinabove is strictly for the purpose of deciding the present anticipatory bail application and it shall not effect merits of case in any manner. All pending application(s) if any are also disposed of.
(P.S.Rana), Judge.
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