Himachal Pradesh High Court
Through His Brother Mittu Ram vs State Of Uttar Pradesh & Anr on 8 April, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 8th DAY OF APRIL, 2022
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
CRIMINAL MISC.PETITION (MAIN) NO. 310 of 2022
.
Between:-
SHAHI MAHATMA
SON OF MANGAL DASS
AGED ABOUT38 YEARS,
RESIDENT OF VILLAGE BIJORI, POST OFFICE SEEMA,
TEHSIL ROHRU, DISTT.SHIMLA, HP
THROUGH HIS BROTHER MITTU RAM
SON OF MANGAL DASS
AGED ABOUT 36 YEARS
r ......PETITIONER
(BY MR. KULBHUSHAN KHAJURIA,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH.
......RESPONDENT
(BY MR. SUDHIR BHARGNAGAR
AND MR. ARVIND SHARMA,
ADDITIONAL ADVOCATE
GENERALS WITH MR. KAMAL
KISHORE SHARMA AND MR.
GAURAV SHARMA,,DEPUTY
ADVOCATE GENERALS)
Whether approved for reporting? Yes.
This petition coming on for orders this day, the Court
passed the following:
ORDER
Bail petitioner namely Shahi Mahatma, who is behind the bars since 12.1.2022, has approached this court in the instant ::: Downloaded on - 08/04/2022 20:14:10 :::CIS 2 proceedings filed under S.439 CrPC, for grant of regular bail in case FIR No.35, dated 19.10.2020 under Ss. 406, 420 and 120-B IP registered at Police Station CID Bharari, Shimla, Himachal Pradesh.
.
2. Status report stands filed, perusal whereof reveals that on 19.10.2020, complainant, Lok Pal Singh, vide complaint addressed to the Additional Director-General of Police, CID, Himachal Pradesh, alleged that the bail petitioner, Shahi Mahatma alongwith Pradeep Kumar and Suchit Kumar purchased apple crop from him and other orchardists. With a view to discharge their liability, they issued some cheque(s). He further alleged that neither the payment in cash ever came to made to them by the persons named herein above, nor cheques issued by them were honoured by the banks concerned, rather the same were dishonoured by the Banks. In the aforesaid background, FIR detailed herein above, came to be lodged against the present bail petitioner and other two persons namely Pradeep and Suchit Kumar. Persons namely Pradeep Kumar and Suchit Kumar already stand enlarged on bail, whereas, present bail petition is behind bars since 12.1.2022. Since investigation in the case is complete and challan stands filed in the competent court of law, petitioner has approached this court in the instant petition for grant of regular bail.
3. While fairly admitting factum with regard to filing of challan in the competent court of law, Mr. Sudhir Bhatnagar, learned Additional Advocate General, contends that though nothing remains to be recovered from the present bail petitioner, but keeping in view the gravity of offence alleged to have been committed by him, prayer ::: Downloaded on - 08/04/2022 20:14:10 :::CIS 3 having been made on his behalf for grant of bail deserves outright rejection. While making this court peruse the record, learned Additional Advocate General states that there is overwhelming evidence adduced .
on record, suggestive of the fact that the bail petitioner, firstly fraudulently opened bank account of Suchit Kumar and thereafter issued cheques to many orchardists for the crop allegedly purchased by him for further sale in the market. Mr. Bhatnagar, further states that the crop amounting to Rs. 40,82,025/- has been fraudulently purchased by bail petitioner in connivance with Pradeep and Suchit Kumar, but till date not even a single penny has been paid by him to the orchardists.
He further states that the cheques issued by present bail petitioner and other accused persons, stand dishonoured as such, it would not be in the interest of justice to enlarge him on bail, who in the event of his being enlarged on bail, may not only flee from justice but may also tamper with the evidence.
4. Having heard learned counsel for the parties and perused the record, this court finds that the complainant named herein above vide complaint dated 19.10.2020 alleged that present bail peitioner and two other persons namely Pradeep Kumar and Suchit Kumar purchased apple from complainant and other orchardists in the year 2020 and with a view to discharge their liablity issued cheques as detailed in the FIR. All the cheques issued by petitioner and other co-
accused stand dishonoured and as such, complainant filed proceedings under S.138 of the NI Act in the competent court of law and same are pending adjudication. As per investigation, present bail ::: Downloaded on - 08/04/2022 20:14:10 :::CIS 4 peitioner with a view to cheat complainant and other orchardists, firstly got the bank account of co-accused Suchit Kumar opened fraudulently and thereafter he, after having purchased apple crop, isued cheques .
to complainant and other orchardists but such cheques were dishonoured. As per investigation crop worth Rs.40,82,025/- was fraudulently purchased by the present bail peitioner in connivance with other persons namely Pradeep Kumar and Suchit kumar but such fact is yet to be established on record by leading cogent and convincing evidece. Interestingly, record in the case at hand reveals that at no point of time, cheques if any ever came to be issued at the behest of present bail peitioner rather same were issued by co-accused Suchit Kumar, who already stands enlarged on bail.
5. Precisely, the case of the prosecution is that though bank account was in the name of Suchit Kumar, but cheques were actually issued by present bail peitioner, who had fraudulently with an intention to cheat people had got bank account of Suchit Kumar, opened at HDFC Bank Rohru, however, having carefully perused the record this court finds that there is no material avaialble on record suggestive of the fact that present bail peitioner made Suchit Kumar to open his bank account in the Bank at Rohru (Central Bank) and thereafter misused cheque book issued in his favour. Neither co-accused Suchit Kumar has lodged any complaint with regard to misuse of his cheque book by present bail peitioner nor cases under S.138 of the NI Act have been filed against the present bail peitioner.
6. Question, whether the present bail peitioner misused the ::: Downloaded on - 08/04/2022 20:14:10 :::CIS 5 cheques of Suchit Kumar, is to be decided by the prosecution on the basis of evidence collected on record. Though, investigation reveals that a sum of Rs. 24,47,585/- was found credited in the bank account .
of the present bail peitioner in HDFC Bank Rohru, but that fact may not be sufficient to prove the guilt, if any, of the present bail peitioner becuase at present there is no material on record to show that aforesaid amount has been received by the present bail peitioner on account of sale of apple crop belonging to the complainant.
7. Leaving everything aside, factum writh regard to sale of apple crop by the complainant and other orchardists is yet to be established on record, as such, it would be too premature to conclude guilt, if any, of the present bail peitioner. Mere allegation of the complainant and other orchardists that they sold apple crop in the year 2020 to the present bail peitioner and other co-accused, may not be sufficient to prove complicity, if any, of the present bail peitioner, especially when financial transaction if any inter se complainant and the present bail peitioner is totally missing. Whether the present bail peitioner and other co-accused Pradeep Kumar and Suchit Kumar in connivance with each other have cheated the complainant and other orchardists, is a question to be decided in appropriate proceedings before appropriate court.
8. Otherwise also, question with regard to civil liability, if any, cannot be considered and decided in the criminal proceedings.
Though aforesaid aspect of the matter is to be considered and decided by learned trial court in the totality of the evidence adduced on record ::: Downloaded on - 08/04/2022 20:14:10 :::CIS 6 by the investigating agency, but having taken note of aforesaid glaring aspects of the matter, this court sees no reason to let the present bail peitioner incarcerate in jail for indefinite period, especially when other .
co-accused already stand enlarged on bail and present bail peitioner has already suffered for more than three months. Otherwise also, no fruitful purpose would be served by keeping the present bail peitioner behind the bars, because money allegedly misappropriated by the present bail peitioner can only be paid by him after being enlarged on bail.
9. Hon'ble Apex Court as well as this Court in catena of cases have repeatedly held that till the time, guilt of a person is not proved in accordance with law, he/she is deemed to be innocent and as such, no fruitful purpose would be served by keeping the bail petitioner behind the bars for an indefinite period during trial, especially when nothing remains to be recovered by him. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to the stringent conditions.
10. The Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.
::: Downloaded on - 08/04/2022 20:14:10 :::CIS 7The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:-
.
" The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.
Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."
11. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon'ble Apex Court has held as under:-
" This Court in Sanjay Chandra v. CBI, also ::: Downloaded on - 08/04/2022 20:14:10 :::CIS 8 involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon .
and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted."
12. The Hon'ble Apex Court in Prasanta Kumar Sarkar v.
Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:
(i) whether there is any prima facie or reasonable ground to believe that the ::: Downloaded on - 08/04/2022 20:14:10 :::CIS 9 accused had committed the offence;
(ii) nature and gravity of the accusation;
(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 influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
13. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, bail petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bonds in the sum of Rs.
10,00,000/- with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with 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;
b. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
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/her 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.::: Downloaded on - 08/04/2022 20:14:10 :::CIS 10
14. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for .
cancellation of the bail.
15. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma) Judge 8th April, 2022 (reena) ::: Downloaded on - 08/04/2022 20:14:10 :::CIS