Himachal Pradesh High Court
Bhagwan Singh vs State Of Himachal Pradesh on 28 July, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MPM No.1822 of 2023
Date of Decision: 28.07.2023
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_____________________________________________________________________
Bhagwan Singh
.........Petitioner
Versus
State of Himachal Pradesh
.......Respondent
Coram
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?
For the petitioner: Mr. Prince Chauhan, Advocate.
For the Respondent: Mr. Rajan Kahol, Mr. Vishal Panwar and Mr. B.C.
Verma, Additional Advocate Generals with
Mr.Rahul Thakur and Mr.Ravi Chauhan, Deputy
Advocate Generals.
ASI Suresh Kumar, CID Crime Branch, District
Shimla, HP, present in person.
___________________________________________________________________________
Sandeep Sharma, J. (Oral)
Sequel to order dated 21.07.2023, whereby the petitioner was ordered to be enlarged on bail in case FIR No.30/2021 dated 26.11.2021, registered at Police Station, CID Crimes (HP), Shimla, under Sections 420, 406, 506 read with Section 120 of Indian penal Code, respondent-state has filed the status report. ASI Suresh Kumar, CID Crime Branch, District ::: Downloaded on - 28/07/2023 20:53:02 :::CIS 2 Shimla, HP, has also come present with the records. Records perused and returned.
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2. ASI Suresh Kumar who is present in Court states that pursuant to the order dated 21.07.2023, petitioner has joined the investigation. He further states that though the petitioner fully cooperated during investigation, but amount payable to the complainant on account of purchase of apple crop is yet to be recovered from the petitioner as well as other co-accused.
3. Mr. Vishal Panwar, Additional Advocate General states that though custodial interrogation of petitioner is not required but keeping in view the gravity of the offence alleged to have been committed by him, he does not deserve any leniency. In case, this Court deems it fit to enlarge the petitioner on bail, he may be put to stringent conditions.
4. Having heard learned counsel for the parties and perused the material available on record, this Court finds that on 26.11.2021, 23 orchardists belonging to district Shimla, lodged a complaint with PS CID Crime, Shimla, alleging therein that in the year, 2019, M/s Himachal Rose Apple, Bye Pass Road Solan, New Sabzi Mandi Solan, owned by present bail petitioner-Mr. Bhagwan Singh alias Guddu purchased their apple crop, but till date, they have not been made payment. Though, the bail petitioner ::: Downloaded on - 28/07/2023 20:53:02 :::CIS 3 being proprietor of the aforesaid firm issued cheques in favour of some of the orchardists qua their apple crop, but those were dishonored on account .
of insufficient funds in the bank account.
5. As per investigation, sum of Rs. 31,72,962/- is payable to 23 complainants/orchardists by M/s Himachal Rose Apple Solan, but only sum of Rs. 8,00,000/- after the registration of the case has been deposited by the present bail petitioner.
6. During investigation, it was found that bail petitioner after having purchased apple crop from 23 orchardists had sold the same to M/s VCD Fruit Merchants, Solan, owned by co-accused Vinod Kumar, Vijay Pal Verma and Niraj Dogra, who in turn, failed to make the payment to present bail petitioner. Persons detailed hereinabove also stand named in the FIR but as of today, they stand enlarged on bail pursuant to order dated 07.03.2022 passed by this Court in Cr.M.P(M) No.122 of 2022. Since, the bail petitioner has already joined the investigation and nothing remains to be recovered from him, prayer has been made on behalf of the petitioner for confirming his interim bail granted vide order dated 21.07.2023. Since, in the investigation, it has clearly emerged that present bail petitioner after having purchased the apple crop from complainants as detailed above sold the same to M/s VCD Fruit Merchants but in turn did not receive any ::: Downloaded on - 28/07/2023 20:53:02 :::CIS 4 payment, it would be premature at this stage to conclude that the petitioner with the intention to cheat the complainants failed to make the payment.
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Though, investigation suggests that M/s VCD Fruit Merchants had paid substantial amount to the petitioner but such fact has been seriously disputed by the petitioner. Leaving everything aside, this Court is of the view that "whether complainants had sold their crop to the petitioner and they were not paid any payment" is a question to be decided by the Court in totality of evidence to be led on record by the respective parties.
7. Needless to say that in criminal proceedings, civil liabilities, if any, cannot be determined and decided. FIR as lodged against the petitioner is only with regard to the allegation of cheating and fraud, if any, committed by the petitioner, which otherwise, shall be proved by prosecution by leading cogent and convincing evidence. Allegedly, crop was sold in the year 2017, but FIR came to be lodged in the year 2021, which fact itself weakens the case of the prosecution and there is no plausible explanation that why the complainants remained silent for four years.
8. Though the case at hand is to be decided by the court below in totality of evidence led on record by the investigating agency but having taken note of the fact that the petitioner has already joined investigation, there appears to be no reason for custodial interrogation of the present bail ::: Downloaded on - 28/07/2023 20:53:02 :::CIS 5 petitioner, who shall otherwise made himself available for investigation as and when called by the Investigating Agency. Hon'ble Apex Court as well as .
this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. Since, in the case at hand also, guilt, if any, of the bail petitioner is yet to be proved by leading cogent and convincing evidence, this Court sees no reason to let petitioner incarcerate in jail for indefinite period during trial. Apprehension expressed by the learned Additional Advocate General that in the event of petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions.
9. Needless to say, object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. See: Sanjay Chandra versus Central Bureau of ::: Downloaded on - 28/07/2023 20:53:02 :::CIS 6 Investigation (2012)1 Supreme Court Cases 49, Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, and Prasanta Kumar Sarkar v.
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Ashis Chatterjee and Another (2010) 14 SCC 496.
10. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case.
11. Consequently, in view of the above, order dated 21.07.2023, passed by this Court, is made absolute, subject to the following conditions:
a. He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;::: Downloaded on - 28/07/2023 20:53:02 :::CIS 7
b. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
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c. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and d. He shall not leave the territory of India without the prior permission of the Court.
12. It is clarified that if the petitioner misuses his liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
13. Any observations made hereinabove shall not be construed to be a reflection on the merits of the main case and shall remain confined to the disposal of this application alone.
The bail petition stands disposed of accordingly.
Copy Dasti.
July 28, 2023 (Sandeep Sharma),
(mamta/pathania) Judge
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