Himachal Pradesh High Court
Rajiv Sharma vs Prabhakar Rajaram on 1 September, 2021
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 1st DAY OF SEPTEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC. PETITION (MAIN) No.1360 of 2021
Between:
RAJIV SHARMA,
S/O SH. PYARE LAL,
AGED 41 YEARS,
R/O WARD NO.2,
NEAR SHIV MANDIR, BADDI,
TEHSIL BADDI,
DISTRICT SOLAN,
H.P.
....PETITIONER
(BY MR. J.L. BHARDWAJ, ADVOCATE)
AND
1. THE STATE OF HIMACHAL PRADESH.
2. SHRI CHHOTU RAM,
S/O SHRI SADAR DEEN,
R/O VILLAGE BILANWALI-GUJJARAN,
TEHSIL BADDI,
DISTRICT SOLAN,
H.P.
....RESPONDENTS
::: Downloaded on - 31/01/2022 22:59:33 :::CIS
2
(BY MR. SUDHIR BHATNAGAR
.
ADDITIONAL ADVOCATE GENERAL
WITH MR. NARENDER THAKUR,
DEPUTY ADVOCATE GENERAL, FOR R-1)
(BY MR. KARAN SINGH KANWAR,
ADVOCATE, FOR R-2)
Whether approved for reporting?. Yes.
This petition coming on for orders this day, the Court passed the following:
ORDER
By way of instant application filed under Section 439 (2) Cr.PC., read with Section 482 Cr.PC., prayer has been made on behalf of the petitioner-complainant for cancellation of anticipatory bail granted by the learned Additional Sessions Judge, Nalagarh, District Solan, H.P., in case No. 44 of 2020, titled Chhotu Ram v. State of HP in case FIR No. 300 of 2020, dated 6.12.2020, registered at PS Baddi, District Solan, under Sections 406, 420 and 506 of IPC.
2. Briefly stated facts, as emerge from the record are that, petitioner-complainant met respondent No.2-Chhotu Ram, through one Tarsem Lal, who happens to be his co-brother for purchasing some plot at Panchkula Haryana. Respondent No.2 allegedly told the complainant that government has acquired land of farmers and same shall be subsequently given as a plot and since he has acquaintance with certain farmers, he will ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 3 get one plot sold to the petitioner-complainant. Allegedly, petitioner-
.
complainant on the askance of the respondent No.2, gave Rs. 66.00 lac to him through Sh. Tarsem Lal for the purchase of plot. Sum of Rs. 41.00 lac was deposited in the bank account of respondent No.2 on 17.6.2013, whereas Rs. 25.00 lac was allegedly paid as cash at Baddi. Since despite having received aforesaid amount, respondent No.2-accused failed to get the plot allotted/transferred in favour of the petitioner-complainant, he filed the FIR detailed herein above. Apprehending his arrest, respondent-
accused filed an application under Section 438 CrPC in the court of learned Additional Sessions Judge, Nalagarh, District Solan, praying therein for interim bail.
3. Learned court below vide order dated 7.4.2021, enlarged the respondent-accused on bail in the event of his arrest in the FIR detailed herein above subject to his joining investigation as and when required by the arresting officer. On 19.5.2021, court below after having taken note of the status report as well as record made available by the investigating agency made the order dated 7.4.2021, absolute, subject to following conditions
1. That the applicant shall join the investigation as and when required by the police.
2. That he/she shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 4 so s to dissuade him from disclosing such fats to the court or to ay .
Police Officer.
3. That he/she shall not leave India without previous permission of the court.
4. Being aggrieved and dis-satisfied with the aforesaid order granting bail in favour of respondent No.2, petitioner-complainant has approached this Court in the instant proceedings filed under Section 439 (2) Cr.PC for the cancellation of the bail.
5. Pursuant to notices issued by this Court, respondents have filed reply to the petition. Specific objection with regard to maintainability of the petition has been taken by both the respondents. Learned Additional Advocate General, while referring to the impugned order granting anticipatory bail vehemently submits that since there is nothing on record suggestive of the fact that after grant of anticipatory bail, respondent-
accused has jumped over the conditions imposed by the court below while granting bail, instant application for cancellation of bail filed under Section 439(2) Cr.Pc is not maintainable, he further contends that if the petitioner intends to lay challenge to the aforesaid order granting bail on merits, appropriate remedy under law is to file criminal revision petition under Section 397 Cr.PC, but not definitely, under Section 439 (2) Cr.PC.
6. Mr. J.L. Bhardwaj, while making this Court peruse provisions contained under Section 439 (2) Cr.PC contends that application for ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 5 cancellation of bail can be filed directly to the court of learned Sessions .
Judge as well as High Court under Section 439 (2) and it is not necessary to file criminal revision petition under Section 397 Cr.PC., especially when impugned order granting bail is perverse on the face of it. Mr. Bhardwaj, learned counsel, while making this Court peruse, status report filed on behalf of the respondent-state during the proceedings pending before the learned court below, contends that since court below has failed to take note of the contents of the status report as well as record made available to it during the proceedings, order granting bail in favour of respondent No.2 deserves to be cancelled being totally perverse and contrary to the record.
He argued that since respondent during his interrogation himself admitted factum with regard to receipt of Rs. 66.00 lac by him from the petitioner, which fact was disclosed to the court by way of status report, court below had no option but to deny the anticipatory bail to the petitioner, who is accused of committing serious economic offence. In support of his aforesaid submissions, he placed reliance upon following judgments, titled as Central Bureau of Investigation v. Ramendu Chattopadhyay, 2020 (14) SCC 396, State of Gujarat v. Mohanlal Jitamalji Porwal and Anr, 1987 (2) SCC 364, P. Chidambaram v. Directorate of Enforcement, ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 6 2019 (9) SCC 24, Dinesh M.N. (S.P.) v. State of Gujarat, 2008 (5) SCC .
66.
7. Having heard learned counsel for the parties and perused material available on record, this court finds that under Section 439 (2) Cr.PC., High Court or Court of Sessions can direct that any person who has been released on bail under chapter XXXIII of Cr.PC be arrested and commit him to custody. Section 439 (2) Cr.PC nowhere limits or restricts the power of High Court or Sessions Court to cancel the bail on the ground of violation of conditions imposed at the time of granting bail, rather, High court finding order granting bail contrary to the provisions of law and facts, can always proceed to order for cancellation of bail granted by it or by the subordinate courts. In this regard reliance is placed on judgment passed by the Hon'ble Supreme Court in case titled Dinesh M.N. (S.P.) v. State of Gujarat, 2008 (5) SCC 66, wherein Hon'ble Apex Court has held that bail can be cancelled if material(s), on which bail is granted, is/are substantially irrelevant. Relevant paras of the aforesaid judgment read as under:
"17. In support of the appeal, learned counsel for the appellant submitted that the parameters for grant of bail and cancellation of bail are entirely different as has been laid down by this Court in several cases. In the application for cancellation of bail there was no reference to any supervening circumstance and only analysis of the materials which were considered by the trial Court to grant bail were highlighted. It is submitted that even if two views are possible, once the bail has been granted, it should not be cancelled. Reliance is placed on decisions of this Court in State (Delhi Admn.) ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 7 v. Sanjay Gandhi (1978 (2) SCC 411), Bhagirathsinh v. State of .
Gujarat (1984 (1) SCC 284), Aslam Babalal Desai v. State of Maharashtra (1992 (4) SCC 272), Dolat Ram v. State of Haryana (1995 (1) SCC 349), Ramcharan v. State of M.P. (2004 (13) SCC 617), Mehboob Dawood Shaikh v. State of Maharashtra (2004 (2) SCC 362), Nityanand Rai v. State of Bihar (2005 (4) SCC
178), State of U.P. v. Amarmani Tripathi (2005 (8) SCC 21) and Panchanan Mishra v. Digambar Mishra (2005 (3) SCC 143). It is pointed out that the common thread passing through the aforesaid decisions is that there is no scope for cancellation of bail on re-appreciation of evidence. It is pointed out that in Mehboob's case (supra) and Amarmani's case (supra) the bail was cancelled as it was established that there were serious attempts to tamper with the evidence and to interfere and sidetrack the investigation and threaten the witnesses. It is pointed out that as laid down by this Court in Sanjay Gandhi's case (supra) and Dolat Ram's case (supra) the bail granted should not have been cancelled by way of re- appreciating evidence.
18. In response, learned counsel for the State of Gujarat submitted that it has not been laid down by this Court that only if supervening circumstances are there, on assessing the same bail can be cancelled. He referred to findings of the High Court as to how appellant has tried to divert attention and thereby defeat the course of justice.
19. As is evident from the rival stands one thing is clear that the parameters for grant of bail and cancellation of bail are different.
There is no dispute to this position. But the question is if the trial Court while granting bail acts on irrelevant materials or takes into account irrelevant materials whether bail can be cancelled. Though it was urged by learned counsel for the appellant that the aspects to be dealt with while considering the application for cancellation of bail and on appeal against the grant of bail, it was fairly accepted that there is no scope of filing an appeal against the order of grant of bail. Under the scheme of the Code the application for cancellation of bail can be filed before the Court granting the bail if it is a Court of Sessions, or the High Court.
20. It has been fairly accepted by learned counsel for the parties that in some judgments the expression "appeal in respect of an order of bail" has been used in the sense that one can move the higher court.
21. Though the High Court appears to have used the expression 'ban' on the grant of bail in serious offences, actually it is referable to the decision of this Court in Kalyan Chandra Sarkar v. Rajesh ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 8 Ranjan @ Pappu Yadav and Anr. (2004 (7) SCC 528) In para 11 it .
was noted as follows:
"11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter or course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
r (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh (2002 (3) SC
598) and Puran v. Rambilas (2001 (6) SCC
338).
22. It was also noted in the said case that the conditions laid down under Section 437 (1)(i) are sine qua non for granting bail even under Section 439 of the Code.
In para 14 it was noted as follows:
"14. We have already noticed from the arguments of learned counsel for the appellant that the present accused had earlier made seven applications for grant of bail which were rejected by the High Court and some such rejections have been affirmed by this Court also. It is seen from the records that when the fifth application for grant of bail was allowed by the High Court, the same was challenged before this Court and this Court accepted the said challenge by allowing the appeal ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 9 filed by the Union of India and another and cancelled the bail .
granted by the High Court as per the order of this Court made in Criminal Appeal No. 745 of 2001 dated 25-7-2001. While cancelling the said bail this Court specifically held that the fact that the present accused was in custody for more than one year (at that time) and the further fact that while rejecting an earlier application, the High Court had given liberty to renew the bail application in future, were not grounds envisaged under Section 437(1)(i) of the Code. This Court also in specific terms held that the condition laid down under Section 437(1)(i) is sine qua non for granting bail even under Section 439 of the Code. In the impugned order it is noticed that the High Court has given the period of incarceration already undergone by the accused and the unlikelihood of trial concluding in the near future as grounds sufficient to enlarge the accused on bail, in spite of the fact that the accused stands charged of offences punishable with life imprisonment or even death penalty. In such cases, in our opinion, the mere fact that the accused has undergone certain period of incarceration (three years in this case) by itself would not entitle the accused to being enlarged on bail, nor the fact that the trial is not likely to be concluded in the near future either by itself or coupled with the period of incarceration would be sufficient for enlarging the appellant on bail when the gravity of the offence alleged is severe and there are allegations of tampering with the witnesses by the accused during the period he was on bail."
23. Even though the re-appreciation of the evidence as done by the Court granting bail is to be avoided, the Court dealing with an application for cancellation of bail under Section 439(2) can consider whether irrelevant materials were taken into consideration. That is so because it is not known as to what extent the irrelevant materials weighed with the Court for accepting the prayer for bail.
24. In Puran v. Rambilas and Anr. (2001 (6) SCC 338) it was noted as follows:
"11. Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that the accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.). In that case the Court observed as under: (SCC p. 124, para 16) "If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 10 move the Sessions Judge if certain new circumstances have .
arisen which were not earlier known to the State and necessarily, therefore, to that court. The State may as well approach the High Court being the superior court under Section 439(2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existing, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-`-vis the High Court."
8. Reliance is also placed on judgment passed by the Hon'ble Apex Court in case titled Puran v. Rambilas & Anr and Shekhar &Anr v.
State of Maharashtra and Anr, 2001 (6) SCC 338, wherein it has been held as under:
"7.Mr. Lalit submitted that one of the reasons why the High Court set aside bail was that the Additional Sessions Judge had not referred to any material circumstance on record and had not given any reasons. He submitted that the High Court was wrong in so observing. He submitted that the same Additional Sessions Judge had earlier granted bail to the ladies by his Order dated 11th September, 2000. He pointed out that, whilst so granting bail, the Additional Sessions Judge had given very cogent reasons. He submitted that against that Order a Petition had been filed in the High Court. He submitted that even though the High Court rejected the Petition, the High Court observed as follows :
"I agree with the learned Counsel appearing on behalf of the complainant that while granting bail the learned Judge ought not to have ventured to discuss the merits or demerits of the evidence collected against the accused persons. Probably he was not aware or he was not remined of the advice given by the Apex Court in the case of Niranjan Singh & another vs. Prabhakar Rajaram Kharote and Others reported in AIR 1980 S.C. 785 wherein detailed examination of the evidence and elaborate documentation of the merits of the case while passing orders on bail application was deprecated."::: Downloaded on - 31/01/2022 22:59:33 :::CIS 11
8. He submitted that in view of these observations the learned .
Additional Sessions Judge did not given reasons whilst granting bail. He submitted that in these circumstances the Additional Sessions Judge cannot be faulted. He submitted that the High Court could not cancel bail on this ground. We see no substance in this contention. Giving reasons is different from discussing merits or demerits. At the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case has not to be undertaken. What the Additional Sessions Judge had done, in the Order dated 11th September, 2000 was to discuss the merits and de-merits of the evidence. That was what was deprecated. That did not mean that whilst granting bail some reasons for prima facie concluding why bail was being granted did not have to be indicated.
9.Mr. Lalit next submitted that the High Court has itself not given reasons but has mechanically set aside the order of the bail. We see no substance in this submission. The High Court has correctly not gone into merits or demerits of the matter. The High Court has noted that evidance prima-facie indicated demand of dowry. The High Court has briefly indicated the evidence on record and what was found at the scene of the offence. The High Court has indicated that evidance prima facie indicated that a demand for Rs. 1 lac was made just a month prior to the incident in question. The High Court has stated that the material on record suggested that the offences under Sections 498-A and 304-A were prima facie disclosed. The High Court has concluded that the material on record, the nature of injuries, demand for Rs. 1 lac and the other circumstances were such that this was not a fit case for granting bail. Thus the High Court has given very cogent reasons why bail should not have been granted and why this unjustified erroneous Order granting bail should be cancelled.
10.Mr. Lalit next submitted that once bail has been granted it should not be cancelled unless there is evidence that the conditions of bail are being infringed. In support of this submission he relies upon the authority in the case of Dolat Ram & Ors. vs. State of Haryana reported in 1995 (1) S.C.C. 349. In this case it has been held that rejection of bail in a non-bailable case at the initial stage and the cancellation of bail already granted have to be considered and dealt with on different basis. It has been held that very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail already granted. It has been held that generally speaking the grounds for cancellation of bail broadly are interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. It is, however, to be noted that this Court has ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 12 clarified that these instances are merely illustrative and not .
exhaustive. One such ground for cancellation of bail would be where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of this nature and that too without giving any reasons. Such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. It must be remembered that such offences are on the rise and have a very serious impact on the Society. Therefore, an arbitrary and wrong exercise of discretion by the trial court has to be corrected.
11.Further, it is to be kept in mind that the concept of setting aside the unjustified illegal or perverse order is totally different from the concept of cancelling the bail on the ground that accused has misconducted himself or because of some new facts requiring such cancellation. This position is made clear by this Court in Gurcharan Singh v. State (Delhi Admn.) reported in AIR 1978 SC 179. In that case the Court observed as under:-
"If, however, a Court of Session had admitted an accused person to bail, the State has two options. It may move the Sessions Judge if certain new circumstances have arisen which were not earlier known to the State and necessarily, therefore, to that Court. The State may as well approach the High Court being the superior Court under S. 439 (2) to commit the accused to custody. When, however, the State is aggrieved by the order of the Sessions Judge granting bail and there are no new circumstances that have cropped up except those already existed, it is futile for the State to move the Sessions Judge again and it is competent in law to move the High Court for cancellation of the bail. This position follows from the subordinate position of the Court of Session vis-a-vis the High Court.
12.It must be mentioned that in support of the above submission Mr. Lalit had also relied upon the authorities in the cases of Subhendu Mishra vs. Subrat Kumar Mishra and another reported in 1999 Crl.L.J. 4063, State (Delhi Administration) vs. Sanjay Gandhi reported in (1978) 2 S.C.C. 411 and Bhagirathsinh s/o Mahipat Singh Judeja vs. State of Gujarat reported in 1984 (1) S.C.C. 284. These need not be dealt with separately as they are of no assistance in a case of this nature where bail has been cancelled for very cogent and correct reasons.
13. Our view is supported by the principles laid down in the case of Gurcharan Singh & Others, etc. vs. State (Delhi Administration) reported in 1978 (1) S.C.C. 118. In this case it has been held, by this Court, that under Section 439(2), the approach should be ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 13 whether the order granting bail was vitiated by any serious .
infirmity for which it was right and proper for the High Court, in the interest of justice, to interfere.
9. Recently, the Hon'ble Apex Court in case titled Myakala Dharmarajam and Ors v. State of Telangana and Anr, 2020 (2) SCC 743, has held that cancellation of bail can be done in cases where the order granting bail suffers from serious infirmities resulting in miscarriage of justice. If the court granting bail ignores relevant material indicating prima facie involvement of the accused or takes into account irrelevant material, which has no relevance to the question of grant of bail to the accused, the High Court or the Sessions Court would be justified in cancelling the bail while exercising power under Section 439 (2) Cr.PC.
10. Having taken note of the aforesaid exposition of law laid down by the Hon'ble Apex Court and provision of law contained under Section 439 (2) Cr.PC, this Court is of the view that High Court or Court of Sessions can cancel the bail granted by it or by subordinate courts while exercising power under Section 439(2) Cr.PC, if they after having seen record come to the conclusion that order granting bail suffers from serious infirmity resulting in miscarriage of justice. No doubt in normal circumstance, court, which has granted bail, shall have power to cancel the bail in case ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 14 conditions imposed by it at the time of grant of bail are violated or jumped .
over by the person, in whose favour, bail is/was granted. But High Court as well as Court of Sessions while exercising power under Section 439 (2) Cr.PC can proceed to cancel the bail granted by it or either by the subordinate courts, if it comes to the conclusion that court granting bail has ignored relevant material indicating prima facie involvement of the accused or has taken into account irrelevant material, which has no relevance to the question of grant of bail to the accused. Hence, in view of the aforesaid, it can be safely held that under Section 439 (2) Cr.PC, High Court has inherent jurisdiction to cancel the bail granted by the subordinate court for the reasons taken note herein above.
11. In the case at hand, petitioner/complainant lodged FIR against the respondent-accused that he misappropriated Rs. 66.00 lac given by him for purchase of some plot. Neither respondent returned the money nor got the plot purchased in favour of the petitioner-complainant. However, replies having been filed by the respondents, especially, respondent No.1 as well as status report filed by the respondent-State in the proceedings before the court below, if read in its entirety vis-à-vis order dated 19.5.2021, whereby interim bail granted vide order dated 7.4.201, came to be affirmed reveal that at no point of time, petitioner-complainant was able to produce ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 15 any agreement executed inter-se him and respondent with regard to .
purchase of the plot. Though material available on record reveals that sum of Rs. 41.00 lac was transferred in the bank account of the respondent, but he categorically disclosed to the police during investigation that aforesaid amount was advanced by him to the petitioner/complainant as a loan with a view to save him from the criminal proceedings initiated at the behest of lady namely Kulwant Kaur to whom, allegedly petitioner had issued cheques, but same were dishonoured. Similarly, respondent/complainant disclosed to the police that petitioner complainant had advanced Rs. 19.00 lac to him, but same was returned to complainant-Rajiv Sharma.
Transaction qua the aforesaid amount took place inter-se petitioner/complainant and respondent-accused somewhere in the year 2013, but interestingly, FIR, which is subject matter of the present case, came to be instituted in the year, 2017 after an inordinate delay of four years. Since petitioner/ complainant failed to place on record any agreement to sell or agreement of an kind executed inter-se him and respondent, containing therein factum with regard to payment of Rs. 66.00 lac by the petitioner-complainant to the respondent, court below rightly proceeded to grant interim bail to the respondent vide order dated 7.4.2021, which subsequently, came be affirmed vide order dated ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 16 19.5.2021. Interestingly, even in these proceedings, petitioner complainant .
has failed to place on record documentary evidence, if any, with regard to payment of Rs. 66.00 lac allegedly made by him to respondent for purchase of a plot. It is otherwise difficult to believe that sum of Rs. 66.00 lac was paid to the respondent by the petitioner for purchase of the plot without there being any agreement to sell. To the contrary, respondent while fairly admitting factum with regard to receipt of 41.00 lac in his bank account has claimed that aforesaid sum was advanced by him to the petitioner-
complainant. Whether sum of Rs. 66.00 lac was paid by the petitioner complainant to the respondent and same was subsequently misappropriated by the respondent-accused, is a matter of trial and court below in the absence of documentary evidence, if any, adduced on record by the petitioner-complainant had no reason to infer/conclude complicity, if any, of the respondent in the alleged commission of the aforesaid offences.
12. Though in the instant case, police also made correspondence with the Income Tax Officer, Parwanoo, for obtaining the ITR of the accused, but till passing of the order dated 19.5.2021, same could not be placed before this court and as such, no fault, if any, can be found with the order dated 19.5.2021, affirming interim bail order date 7.4.2021, passed ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 17 by the court below. Record reveals that matter repeteadly came to be .
adjourned, enabling the investigating agency to place on record documentary evidence, if any, with regard to the payment of Rs. 66.00 lac to the respondent by the petitioner, but since such documents were not in existence, police failed to place the same on record. There cannot be any quarrel with regard to the proposition of law laid down by the Hon'ble Apex Court that in the cases of economic offences, court should be slow/loath in acceding prayer for grant of bail. See. Central Bureau of Investigation v.
Ramendu Chattopadhyay, 2020 14 SCC 396. P. Chidambaram v.
Directorate of Enforcement, 2019 (9) SCC 24. In the aforesaid judgments, it has been held that legislative intent behind the introduction of Section 438 Cr.P.C. is to safeguard the individual's personal liberty and to protect him from the possibility of being humiliated and from being subjected to unnecessary police custody, but the court while doing so is also required to keep in mind that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake and as such, a delicate balance is required to be established between the two rights i.e. 1. safeguarding the personal liberty of an individual and; 2. the societal interest.
::: Downloaded on - 31/01/2022 22:59:33 :::CIS 1813. However, in the case at hand though there is an allegation of .
misappropriation of 66 lac by the respondent, but as has been taken note here in above, there is no evidence worth credence available on record that sum of Rs. 66.00 lac was paid by the petitioner-complainant to the respondent for purchase of plot. Had aforesaid sum been paid for purchase of the plot by the petitioner to the respondent, definitely there would have been some agreement, but in the case at hand, neither there is any agreement to sell nor there is a receipt if any, issued qua the payment of 66 lac by the petitioner complaint to respondent No.2. Sum of Rs. 41 lac received in the bank account of respondent has been duly explained by him by stating that aforesaid amount was paid by him to the petitioner-
complainant with a view to save him from criminal proceedings initiated at the behest of the lady namely Kulwant Kaur. Whether respondent No.2 committed an economic offence is a question, which needs to be decided on the basis of evidence collected on record by the prosecution and mere use of expression "economic offence" cannot be made basis to deny the prayer made on behalf of the respondent for grant of anticipatory bail, especially in the given facts and circumstances of the case.
14. Consequently, in view of the detailed discussion made herein above as well as law relied upon, this Court sees no merit in the present ::: Downloaded on - 31/01/2022 22:59:33 :::CIS 19 petition and same is dismissed being devoid of any merits and order dated .
19.5.2021 passed by the court below is upheld. Observation, if any, made herein above, shall have no bearing on the merits of the main case.
1st September, 2021 (Sandeep Sharma),
(manjit) Judge
r to
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