Himachal Pradesh High Court
Vinay Kumar Son Of Late Shri Shanker Dass vs State Of H.P. ....Non-Applicant on 9 January, 2015
Author: P.S. Rana
Bench: P.S. Rana
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MP(M) No. 1396 of 2014
Order Reserved on 24th December, 2014
Date of Order 09th January, 2015
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Vinay Kumar son of late Shri Shanker Dass ....Applicant
Versus
State of H.P. ....Non-applicant
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Coram
The Hon'ble Mr. Justice P.S. Rana, J.
Whether approved for reporting?1 Yes.
__________________________________________________________ For the Applicant: Mr. B.S. Chauhan, Advocate For the Non-applicant: Mr. M.L. Chauhan, Additional Advocate General with Mr. Puneet Rajta, Deputy Advocate General and Mr.J.S. Rana, Assistant Advocate General.
___________________________________________________________ P.S. Rana, Judge.
Order:- Present anticipatory bail application is filed under Section 438 of the Code of Criminal Procedure 1973 for grant of bail in connection with case FIR No. 53 of 2014 dated 20.9.2014 registered under Sections 420 and 120-B of IPC in Police Station Kotkhai District Shimla (HP).
2. It is pleaded that applicant is innocent and applicant undertakes not to influence or induce the 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes.
::: Downloaded on - 15/04/2017 17:31:43 :::HCHP 2prosecution witnesses and will abide by the conditions to be imposed by the Court. It is pleaded that applicant will join the investigation of case as and when required.
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Prayer for acceptance of anticipatory bail application filed under Section 438 Cr.P.C. is sought.
3. Per contra police report filed. As per police report, FIR No. 53 of 2014 dated 20.9.2014 registered under Sections 420 and 120-B IPC at police station Kotkhai District Shimla. There is recital in police report that complainant and his family members are agriculturists and horticulturists by profession for so many generations and having big orchard and revenue at village Chol Tehsil Kotkhai District Shimla. There is recital in police report that complainant and his family members had a very good apple crop during this apple season and accused persons namely Suresh Kumar, Gulshan Kumar and Vinay Kumar claimed that they are registered commission agents with Agriculture Produce Marketing Committee Dhalli and performing there the business under trade mark Jai Durga Trading at Shop No. 7 APMC Market Subzi Mandi Gumma Tehsil Kotkhai District Shimla.
There is further recital in police report that in the starting of apple season the accused persons approached the complainant at their native place village Chol and requested the complainant to supply apple boxes and ::: Downloaded on - 15/04/2017 17:31:43 :::HCHP 3 gunny bags of apple for sale at their business center at Hulli near Gumma Tehsil Kotkhai. There is further recital in police report that accused agreed that payment of the .
whole apple crop will be made to complainant within one week from the last supply of apple boxes. There is further recital in police report that complainant Sukh Dev had supplied 1755 apple boxes and 63 gunny bags of apple to accused persons during the apple season from dated 5.8.2014 to 20.8.2014 on various dates on 23 occasions and total sale price approximately comes to ` 25,70,905/-
(Rupees twenty five lacs seventy thousand nine hundred five only) which is payable to complainant. There is recital in police report that accused assured the complainant that within one week from the last supply of apple boxes the payment would be given. There is further recital in police report that complainant supplied the apple boxes and gunny boxes of apple to accused persons. There is further recital in police report that complainant went to the shop of accused for payment of ` 25,70,905/- (Rupees twenty five lacs seventy thousand nine hundred five only) but accused persons have left the business from Hulli (Gumma) and accused persons had cheated so many apple growers during this apple season. There is recital in police report that thereafter complainant went to the office of APMC Dhalli to enquire about the licence of ::: Downloaded on - 15/04/2017 17:31:43 :::HCHP 4 accused persons but complainant was informed by APMC authorities that no licence has been issued in the names of accused persons. There is further recital in police report .
that accused persons have received the apple boxes with intention to cheat the complainant deliberately and by way of misrepresentation of facts that accused persons are registered commission agents with APMC Dhalli. There is also recital in police report that accused persons have cheated the complainant in furtherance of criminal conspiracy and received the sale price of apples by supplying the apple boxes to the various markets throughout India. There is further recital in police report that after registration of criminal case matter was investigated and during investigation it was observed that no licence was issued in the names of accused persons by APMC Dhalli as commission agents. There is further recital in police report that accused persons have purchased the apples of villagers. There is further recital in police report that accused persons have purchased the apples from villagers without any licence of commission agents in consideration amount of ` 50,00,000/- (Rupees fifty lacs only). There is further recital in police report that accused persons are liable to pay ` 25,00,000/- (Rupees twenty five lacs only) to complainant namely Sukh Dev. There is further recital in police report that Suresh Kumar and ::: Downloaded on - 15/04/2017 17:31:43 :::HCHP 5 Gulshan Kumar have been released on bail by Sessions Court Shimla. There is also recital in police report that in present case no recovery is to be effected from accused .
persons. There is further recital in police report that if applicant is released on bail then applicant will threat the prosecution witnesses and will also influence the investigation of case. Prayer for rejection of anticipatory bail application is sought.
4. Court heard learned Advocate appearing on behalf of the applicant and learned Additional Advocate General appearing on behalf of the State and also perused the record.
5. Following points arise for determination in this bail application:-
Point No. 1Whether anticipatory bail application filed under Section 438 Cr.P.C. is liable to be accepted as mentioned in memorandum of grounds of bail application? Point No.2 Final Order.
Findings on Point No.1
6. Submission of learned Advocate appearing on behalf of applicant that applicant is innocent cannot be decided at this stage. Same facts will be decided when case shall be disposed of on merits after giving due ::: Downloaded on - 15/04/2017 17:31:43 :::HCHP 6 opportunity to both parties to lead evidence in support of their case.
7. Submission of learned Advocate appearing on .
behalf of applicant that no recovery is to be effected from applicant and other co-accused persons namely Suresh Kumar and Gulshan Kumar have been released on bail and on this ground anticipatory bail application filed by applicant be allowed is accepted for the reasons hereinafter mentioned. At the time of granting bail following factors are considered. (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 Apex Court DB 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. It was held that grant of bail is the rule and committal to jail is exceptional. It was held that refusal of bail is a restriction on personal liberty of individual guaranteed under Article 21 of the Constitution. It was ::: Downloaded on - 15/04/2017 17:31:43 :::HCHP 7 further held that accused should not be kept in jail for an indefinite period. In view of the fact that no recovery is to be effected from accused as per police report and in view .
of the fact that other co-accused namely Suresh Kumar and Gulshan Kumar already released on bail by learned Sessions Judge Shimla Court is of the opinion that if anticipatory bail application is allowed then interest of State and general public will not be adversely effected.
8. Submission of learned Additional Advocate General appearing on behalf of non-applicant that if bail is granted to applicant then applicant will induce threat and influence the prosecution witnesses and on this ground bail application be declined is rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that condition will be imposed in the bail order to the effect that applicant will not induce and threat the prosecution witnesses and if applicant will flout the terms and conditions of bail order then non-applicant will be at liberty to file application for cancellation of bail strictly in accordance with law. In view of above stated facts point No.1 is answered in affirmative.
Point No.2 Final Order
9. In view of my findings on point No.1 anticipatory bail application filed by applicant under ::: Downloaded on - 15/04/2017 17:31:43 :::HCHP 8 Section 438 Cr.P.C. is allowed and applicant is ordered to be released on bail subject to furnishing personal bond to the tune of Rs. 25 lac with one surety in the like amount .
to the satisfaction of Investigating Officer on following terms and conditions. (i) That applicant will join the investigation of the case as and when required by police.
(ii) That applicant 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 Court or to any police officer.
(iii) That the applicant will not leave India without the prior permission of the Court. (iv) That applicant will not commit similar offence qua which he is accused. (v) That applicant will give his residential address in written manner to the Investigating Officer. (vi) That applicant will participate in the proceedings of learned trial Court regularly. Applicant be released only if not required in any other criminal case. Anticipatory bail application filed under Section 438 Cr.P.C. stands disposed of.
Observations made in this order will not effect the merits of case in any manner and will strictly confine for the disposal of this bail application filed under Section 439 of Code of Criminal Procedure 1973. Application stands ::: Downloaded on - 15/04/2017 17:31:43 :::HCHP 9 disposed of. All pending application(s) if any also disposed of.
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(P.S.Rana),
January 09, 2015(ms) Judge.
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