Himachal Pradesh High Court
Shiv Ram Sharma vs State Of H.P on 28 February, 2020
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr.M.P.(M) No.194 of 2020
Decided on: 28.02.2020
.
Shiv Ram Sharma ....petitioner
Versus
State of H.P. ...... respondent
................................................................................................
Coram
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1
For the petitioner :
For the respondent :
r to Mr. Virender Singh Chauhan,
Advocate.
Mr. Anil Jaswal, Additional
Advocate General, for the
respondents/State.
SI/SHO Nagdev, P.S. Bhuntar.
Jyotsna Rewal Dua, J (Oral)
Instant petition has been moved under Section 439 of the Code of Criminal Procedure for grant of regular bail, in FIR No.162/2017 dated 11.11.2017, under Sections 420, 467, 468, 471, 120-B and 506 of the Indian Penal Code and Section 3(i)(f)(g) of Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989, registered at Police Station Bhuntar, H.P.
2. Vide interim order passed on 31.01.2020, the petitioner was enlarged on bail subject to conditions specified in the said order.
1Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 02/03/2020 20:24:05 :::HCHP 2Today, SI/SHO Nagdev, P.S. Bhuntar, is present alongwith the record and status report, which is taken on record.
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3. I have heard Mr. Virender Chauhan, learned senior counsel for the petitioner and Mr. Anil Jaswal, learned Additional Advocate General, for the respondents/State and gone through the status report & relevant record for the adjudication of the instant petition.
4(i). The status report and record so produced reveal that:- one Gurdas Ram S/o late Kanoura Ram R/o Ambedkar Naggar, Post Officer and Tehsil Bhunter, District Kullu, H.P., lodged a complaint on 11.11.2017, in Police Station Bhuntar to the effect that:- he had purchased 1 Bigha, 11 Biswas, land in Khasra No.4377, measuring 2 Bigha, 13 Biswa from one Surender Kumar in the year 1992 through a registered deed; in 2007 Surender Kumar and Devender Kumar partitioned the land comprised in Khasra No.4377 by way of mutual partition; despite the fact that 1 Bigha 11 Biswas of the land comprised in Khasra No.4377 had already been sold to the complainant; Surender Kumar was left with only 53 shares, after selling the land to the complainant in Khasra No. 4377; despite this Surender Kumar was shown to have sold 435 shares from Khasra No. 4377; Mutation No.8316 was attested on 29.9.2007 in connivance with ::: Downloaded on - 02/03/2020 20:24:05 :::HCHP 3 petitioner & the beneficiary by concealing the fact that Surender kumar had already sold part of the land measuring 1 Bigha, 11 Biswas, out .
of total land in Khasra No.4377 to the complainant and therefore could not have owned it on the date of attestation of the mutation; though the possession of the land sold was with the complainant.
4(ii) Status report also states that initially the investigation in the matter was completed and cancellation report was also filed before the learned trial Court, however, the same was returned r for re-
investigation of the case. Pursuant to the direction of learned trial Court the re-investigation is underway. The incident is of 2007 and the FIR was registered on 11.11.2017. Learned senior counsel for the petitioner submitted that the bail petitioner retired from the service in the year 2011. While granting interim protection on 31.01.2020, bail petitioner was directed to cooperate with the investigating agency. The interim protection was granted to the petitioner on 31.01.2020, subject to the conditions stated therein. It is not in dispute that subsequent to the interim order passed on 31.1.2020, the bail petitioner has joined the investigation and is cooperating with the investigating agency.
4(iii). Learned counsel for the bail petitioner submits that the revenue entries have already been corrected and share of the complainant and the purchaser have now been reflected in the revenue ::: Downloaded on - 02/03/2020 20:24:05 :::HCHP 4 record as per their shares pursuant to the sale deed in accordance with law.
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4(iv) On instructions, learned Additional Advocate General submits that the bail petitioner is cooperating with the investigation agency and there is no requirement of custodial interrogation of the petitioner.
4(v) It is apt to refer to guidelines for grant/refusal of bails, reiterated by the Hon'ble Apex Court in Criminal Appeal No.1603 of 2019, titled Shri P. Chidambaram Vs. Central Bureau of Investigation, decided on 22.10.2019, relevant segments whereof are reproduced hereinafter:-
"17. Expression of prima facie reasons for granting or refusing to grant bail is a requirement of law especially where such bail orders are appealable so as to indicate application of mind to the matter under consideration and the reasons for conclusion. Recording of reasons is necessary since the accused/prosecution/victim has every right to know the reasons for grant or refusal to grant bail. This will also help the appellate court to appreciate and consider the reasonings for grant or refusal to grant bail. But giving reasons for exercise of discretion in granting or refusing to grant bail is different from discussing the merits or demerits of the case. At the stage of granting bail, an elaborate examination of evidence and detailed reasons touching upon the merit of the case, which may prejudice the accused, should be avoided. Observing that "at the stage of granting bail, detailed examination of evidence and elaborate documentation of the merits of the case should be avoided", in Niranjan Singh, it was held as under:-
"3. ......Detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself."
22. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while ::: Downloaded on - 02/03/2020 20:24:05 :::HCHP 5 considering an application for bail:- (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the .
presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi and another (2001) 4 SCC 280). There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner. At this stage itself, it is necessary for us to indicate that we are unable to accept the contention of the learned Solicitor General that "flight risk" of economic offenders should be looked at as a national phenomenon and be dealt with in that manner merely because certain other offenders have flown out of the country. The same cannot, in our view, be put in a straight-jacket formula so as to deny bail to the one who is before the Court, due to the conduct of other offenders, if the person under consideration is otherwise entitled to bail on the merits of his own case. Hence, in our view, such consideration including as to "flight risk" is to be made on individual basis being uninfluenced by the unconnected cases, more so, when the personal liberty is involved.
23. In Kalyan Chandra Sarkar v. Rajesh Ranjan and another (2004) 7 SCC 528, it was held as under:-
"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 of 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:
(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 SCC 598 and Puran v. Rambilas (2001) 6 SCC 338.) Referring to the factors to be taken into consideration for grant of bail, in Jayendra Saraswathi Swamigal v. State of Tamil Nadu(2005) 2 SCC 13, it was held as under:-
::: Downloaded on - 02/03/2020 20:24:05 :::HCHP 6"16. .......The considerations which normally weigh with the court in granting bail in non-bailable offences have been explained by this Court in State v. Capt. Jagjit Singh AIR 1962 SC 253 and Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 and basically they are -- the nature and seriousness of the .
offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial; reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case......"
24. After referring para (11) of Kalyan Chandra Sarkar, in State of U.P. through CBI v. Amarmani Tripathi (2005) 8 SCC 21, it was held as under:-
"18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour,means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v.NCT, Delhi (2001) 4 SCC 280 and Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused........".
Hon'ble Apex Court in Criminal Appeal No.1309 of 2018 titled Sangitaben Shaileshbhai Datanta Vs. State of Gujarat and anr., held as under:-
"..........while adjudicating a bail application, Section 439 of the Code of Criminal Procedure, 1973 is the guiding principle wherein Court takes into consideration, inter alia, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds. Each criminal case presents its own peculiar factual matrix, and therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. However, the court has to only opine as to whether there is prima facie case against the accused. The Court must not undertake meticulous examination of the evidence collected by the police, or rather order specific tests as done in the present case..........."::: Downloaded on - 02/03/2020 20:24:05 :::HCHP 7
5. In view of above and considering the fact that the petitioner is permanent resident of village Hawai, post office Shiah .
Teshil Bhunter, District Kullu, Himachal Pradesh and therefore, his presence can always be secured in the trial, therefore, no fruitful purpose will be served by sending the petitioner in judicial custody, hence, the interim order passed on 31.01.2020 is made absolute. It is ordered that in the event of arrest of the petitioner, in aforementioned FIR he shall be released on bail on his furnishing personal bond in the sum of Rs.25.000/- (rupees Twenty Five thousand only) with one local surety in the like amount to the satisfaction of Investigating Officer, subject to following conditions:-
1. That the petitioner is directed to join investigation of case as and when called for by the Investigating Officer in accordance with law.
2. That the Petitioner shall not hamper the investigation.
3. That the petitioner undertakes not to contact the complainants, to threaten or browbeat them or to use any pressure tactics in any manner whatsoever.
4. That the petitioner shall not leave India without prior permission of the Court.
5. That 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/her from disclosing such facts to the Court or any Police Officer or tamper with the evidence.
It shall be open for the prosecution to move for cancellation of the bail in case the petitioner abuses the liberty granted and breaches the ::: Downloaded on - 02/03/2020 20:24:05 :::HCHP 8 conditions of bail.Any observation hereinabove shall not be taken as an expression on merits of the case and learned Trial Court shall decide the .
matter uninfluenced by any of observations made hereinabove. Accordingly, this petition stands allowed in above terms.
Copy dasti.
(Jyotsna Rewal Dua) Judge 28.02.2020 (Rohit) ::: Downloaded on - 02/03/2020 20:24:05 :::HCHP