Dilip Kumar Verma vs State Of H.P. And Others on 3 June, 2020

[Cites 12, Cited by 0]

Himachal Pradesh High Court

Dilip Kumar Verma vs State Of H.P. And Others on 3 June, 2020

Bench: Jyotsna Rewal Dua

                                            1



             HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                         Cr.M.P.(M) No. 687 of 2020

                                                   Date of decision: 3rd June, 2020




                                                                                 .
    Dilip Kumar Verma                                               ...Petitioner





                                      Versus

    State of H.P. and others                    ...Respondents





    __________________________________________________________
    Coram:

    The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge





    Whether approved for reporting1 : YES
    For the Petitioner:   Mr.Rajesh Kumar Sharma, Advocate, through
                         rVideo Conferencing

    For the Respondents: Mr. Anil Jaswal, Additional Advocate General
                         with Mr. Manoj Bagga, Assistant Advocate

                         General, through Video Conferencing

     __________________________________________________________
    Jyotsna Rewal Dua,J. (Oral)

Primarily on the ground that the petitioner, an undertrial prisoner, is entitled for the benefit of 436-A of the Code of Criminal Procedure, instant petition for grant of regular bail under Section 439 Cr.P.C. has been preferred by him in FIR No. 11 of 2014 dated 01.03.2014 under Sections 406 & 420 of the Indian Penal Code registered at Police Station CID, Bharari, Shimla, Himachal Pradesh.

2. Heard learned counsel for the parties and gone through the status report filed by the respondent.

Whether Reporters of local newspaper are permitted to see the judgment ?

::: Downloaded on - 04/06/2020 20:21:18 :::HCHP 2

3. Bare minimum facts apposite for adjudication of the bail petition as culled out from the status report filed by the respondent are :-

3(i) On 28.02.2014, a complaint was received in the office of .

Crime Investigation Department, Himachal Pradesh, Shimla. The complainants were (i) Rakesh Wadhwa and Lalit Soni-M/s Shoolini Gas Agency; (ii) Naveen Pal Gupta - M/s Naveen Gas Agency ; (iii) Smt. Poonam Awasthi - M/s Awasthi Gas Service and (iv) Smt. Suman Verma - M/s Sai Gas Agency.

3(ii) The complainants requested for registration of FIR against the five Directors of M/s Prachi Gas Bottling Company Pvt. Ltd., namely, (1) Pawan Kumar Verma; (2) Dilip Kumar Verma (petitioner herein); (3) Rakesh Verma ; (4) Vijay Kumar Verma and (5) Ramesh Pandey. Besides these Directors, complaint was also lodged against employees of M/s Prachi Gas Bottling Company Pvt. Ltd., namely, (6) Ajit Singh Sood ; (7) Ganesh Prasad Sharma ; (8) Ajay Tiwari : (9) Roop Narayan Shah ; (10) Deepak Chaudhary and (11) Sunil Kumar.

3(iii) Gist of the complaint was that all the complainants were allured by wide publicity and advertisements issued by M/s Prachi Gas Bottling Company Pvt. Ltd. for appointment of distributors/dealers for supply of LPG Cylinders in different areas of the State of Himachal Pradesh. The complainants were asked and they accordingly paid a sum of Rs. Two Lacs each as licence fee and rupees Eight Lacs each as security money by way of deposit in the accounts of M/s Prachi Gas ::: Downloaded on - 04/06/2020 20:21:18 :::HCHP 3 Bottling Company Pvt. Ltd. The complainants were thereafter appointed as authorized dealers by M/s Prachi Gas Bottling Company Pvt. Ltd. for supply of LPG Cylinders in the State of Himachal Pradesh.

Appointment letters were issued in their names. Gas connections were issued to several consumers by the Bottling Company. For this also, required payments were made to M/s Prachi Gas Bottling Company Pvt. Ltd., which was to regularly supply/refill LPG Cylinders for onward distribution to the consumers. As per the complaint, Company demanded advance payment for supply/refill of LPG Cylinders.

Accordingly, huge advance payments were also made by the complainants to M/s Prachi Gas Bottling Company Pvt, Ltd. However, re-filled LPG Cylinders were not supplied as promised despite repeated requests of the complainants. Alleging cheating, deception, the complainants requested for lodging the FIR against the persons named in the complaint.

3(iv) This eventually resulted in the registration of FIR in question. The investigation ensued. During investigation, it came out that main office of M/s Prachi Gas Bottling Company Pvt. Ltd. was in Andheri, Mumbai with regional offices in Kamla Nagar, Delhi and at Chandigarh. These offices were found locked. The Company had stopped supply of gas to the complainants and consumers without any reason and without any prior information causing huge losses to the ::: Downloaded on - 04/06/2020 20:21:18 :::HCHP 4 complainants. Rs. 81,21,623/- was allegedly due from M/s Prachi Gas Bottling Company Pvt. Ltd. towards the complainants.

4 (i) The bail petitioner Dilip Kmar Verma was arrested on .

03.08.2014 by the police of Police Station Jalupura, Jaipur (Rajasthan) for his involvement in similar offences there. He was produced by Jaipur police under production warrant before the learned Chief Judicial Magistrate, Shimla on 21.10.2014 and was arrested accordingly. His custody was transferred in the instant FIR and he was remanded to police custody for five days. Learned Court on 25.10.2014 remanded the petitioner to judicial custody for 14 days at Sub Jail, Kaithu i.e. till 07.11.2014. Thereafter, pursuant to production warrant issued by the learned Court at Jaipur (Rajasthan), the petitioner was transferred in custody to Central Jail, Jaipur.

4(ii) Challan in the instant FIR , under Sections 406 and 420 of the Indian Penal Code was presented against the petitioner on 18.12.2014 before the Court of learned Judicial Magistrate 1st Class (Court No.4), Shimla.

4(iii) A petition under Section 482 of the code of Criminal Procedure bearing No. Cr.M.M.O. No. 172 of 2016 was preferred by the petitioner alongwith his brothers and co-accused Vijay Verma, Rakesh Verma and Pawan Verma in this Court for quashing of the FIR in question. Vide order dated 16.06.2016 passed in Cr.M.M.O. No. 172 of 2016, further proceedings in the case arising out of FIR No. 11 of 2014 ::: Downloaded on - 04/06/2020 20:21:18 :::HCHP 5 pending before the learned JMIC (Court No. 4), Shimla were stayed.

The record of the case from learned trial Court (J.M.I.C, Court No. 4,Shimla) was requisitioned vide order dated 26.10.2016. This factual .

position, is also reflected in the order passed by learned JMIC (Court No. 4), Shimla on 19.05.2020 in bail petition preferred by the petitioner before the said Court. The order dated 19.05.2020 also records the fact that though custody of the petitioner was transferred in the instant FIR on 21.10.2014, however, his custody was required time and again in different cases across the country. Therefore, despite issuance of production warrant, the concerned jail authorities could not produce the petitioner before the learned JMIC (Court No. 4), Shimla after transfer of his custody to Central Jail, Jaipur under production warrant issued by learned Court at Jaipur and accordingly, his custody was left in abeyance. The main file of the case was submitted to this Court in Cr.M.M.O. No. 172 of 2016. In view of stay of proceedings by this Court in Cr.M.M.O. No. 172 of 2016, the bail petition preferred by the petitioner before the learned JMIC (Court No.4), Shimla was withdrawn on 21.05.2020 with liberty to file the same before the competent Court, whereafter the instant bail petition has been preferred.

4(iv) Learned Additional Advocate General has opposed the grant of bail on the ground that the amount of Rs. 81,21,623/- is yet to be recovered from the petitioner and other co-accused and that petitioner, a non-Himachali, may evade the trial and flee from justice.

::: Downloaded on - 04/06/2020 20:21:18 :::HCHP 6

Learned Additional Advocate General, however, has not disputed the fact that petitioner has remained in custody in the instant FIR w.e.f.

21.10.2014 till date and has completed in detention more than one half .

of the maximum period of imprisonment prescribed for the offences with which he is charged.

5(i) Section 436 A of the Code of Criminal Procedure inserted by amending Act No. 25 of 2005 provides for grant of bail when a person as an under-trial prisoner has undergone detention for one half of "436A.

r to the maximum prescribed imprisonment for the charged offence. The Section is extracted hereinafter :-

Maximum period for which an undertail prisoner can be detained:- Where a person has, during the period of investigation, inquiry or trial under this Code of an offence under any law (not being an offence for which the punishment of death has been specified as one of the punishments under that law) undergone detention for a period extending up to one-half of the maximum period of imprisonment specified for that offence under that law, he shall be released by the Court on his personal bond with or without sureties.

Provided that the Court may, after hearing the Public Prosecutor and for reasons to be recorded by it in writing, order the continued detention of such person for a period longer than one-half of the said period or release him on bail instead of the personal bond with or without sureties:

Provided further that no such person shall in any case be detained during the period of investigation, inquiry or trial for more than the maximum period of imprisonment provided for the said offence under that law.

Explanation.- In computing the period of detention under this section for granting bail, the period of detention passed due to delay in proceeding caused by the accused shall be excluded."

::: Downloaded on - 04/06/2020 20:21:18 :::HCHP 7

5(ii) In Bhim Singh Vs. Union of India and others reported in (2015) 13 SCC 603, it was observed by the Hon'ble Apex Court that Central Government must take steps in consultation with the State .

Government in fast tracking of types of criminal cases so that criminal justice is delivered timely and expeditiously. Inspite of incorporation of Section 436A in Criminal Procedure Code, under-trial prisoners continue to remain in prison in violation of the mandate of said section.

Accordingly, the Hon'ble Court had directed the jurisdictional Magistrates/Chief Judicial Magistrates/Sessions Judges to hold one sitting in a week in each jail/prison for two months for effective implementation of Section 436A of the Code of Criminal Procedure.

Reference in this regard can also be made to (2017) 5 SCC 702, titled Hussain and another Vs. Union of India for effective implementation of Section 436A of the Code of Criminal Procedure for protecting the fundamental right under Article 21 of the Constitution of India of under-

trial prisoners.

5(iii) FIR No. 11 of 2014 was registered under Sections 406, 409, 420 and 120-B of the Indian Penal Code. Maximum sentence for the offence under Section 406 of the Indian Penal Code is 3 years, under Section 409 IPC for life or imprisonment for 10 years, under Section 420 IPC for 7 years and under Section 120-B IPC is for 2 years. Challan presented against the petitioner is for the offences under Sections 406 and 420 of the Indian Penal Code. The petitioner is under custody in the ::: Downloaded on - 04/06/2020 20:21:18 :::HCHP 8 instant FIR w.e.f. 21.10.2014. Admittedly, he has not been released on bail in the FIR in question thus far. Petitioner has remained in custody for over five years, which is more than half of maximum period of .

imprisonment specified for the offences for which he is facing trial. His case thus falls within the purview of Section 436-A of the Code of Criminal Procedure.

5(iv) Alongwith the bail petition, the petitioner has also placed on record following report of Superintendent of Prisons, District Prison, Kurukshetra (Haryana), dated 05.05.2020, addressed to learned JMIC (Court No.4), Shimla, where petitioner is presently lodged, requesting to grant the petitioner benefit of Section 436A of the Criminal Procedure Code :-

"It is humbly submitted that Under Trial Prisoner Dilip Kumar Verma, S/o Late Sh. Ganesh Parsad Verma, R/o 9/23 Ext. A Patel Nagar, Indira Nagar Lucknow is admitted in this Jail 26.08.2019 as an under trial Prisoner. The accused is facing trial in case FIR No. 11/2014, U/s 420 & 406 IPC, P.S. CID Bharari, Shimla (HP) in the Ld. Court JMIC Shimla. It is further submitted that accused has completed 5 years (approx) and comes under the provision of 436-A Cr. You are requested to release the accused on personal bond in the above mentioned FIR or on interim Bail. The accused has submitted that he is already in custody since last 05 years and the conditions of proceeding of stay in Cr.MMO 172 of 2016 in State Vs. Dalip at High Court on 16th Jun 2016 (Copy enclosed) is not applicable for accused Dilip Kumar. In view of the above, ::: Downloaded on - 04/06/2020 20:21:18 :::HCHP 9 Ld. Court is requested to give benefit of 436-A Cr.P.C. to accused Dalip Kumar."

5(v) Learned counsel for the petitioner has also submitted that .

the petitioner has been granted bail by various Courts. Orders issued in this regard granting bail to the petitioner have been appended with the instant petition. This position has not been disputed in the status report.

Learned counsel for the petitioner has also submitted that for regularizing the custody of the petitioner in the instant FIR, a separate application has been moved in Cr.M.M.O. No. 172 of 2016 for transfer of record to the learned trial Court. His statement is taken on record.

The undisputed fact remains that the petitioner is in custody in the instant FIR w.e.f. 21.10.2014 and has not been released till date. He has completed more than half of maximum period of imprisonment prescribed for the offences charged against him. Therefore, he is entitled to claim the benefit of Section 436A of the Criminal Procedure Code.

6. Considering all the above factors, in my view, the petitioner is entitled to bail under the provisions of Section 436-A of the Code of Criminal Procedure. However, considering nature of the allegations leveled in the FIR and the follow up investigation carried out, interest of justice can be protected by imposing stringent conditions of bail upon him. Accordingly, this petition is allowed and the petitioner is ordered to be released on bail on his furnishing personal bail bond in the sum of Rs. 1,00,000/- (lac) with one local surety in the like amount ::: Downloaded on - 04/06/2020 20:21:18 :::HCHP 10 to the satisfaction of the learned trial Court having jurisdiction over the matter, subject to the following conditions:-

1. That the petitioner will join investigation of the case as .

and when called for by the Investigating Officer in accordance with law. He shall fully cooperate the Investigating Officer and will appear before him in the concerned police station as and when called in accordance with law.

2. That the petitioner will not leave India without prior permission of the Court.

3. That the petitioner 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 Investigating Officer or court. Petitioner shall not temper with evidence or hamper the investigation.

4. That the petitioner shall attend the trial and will remain present in learned Trial Court on each and every hearing of the case in question unless exempted in accordance with law.

5. The petitioner shall inform the Station House Officer of the concerned Police Station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.

7. It shall be open for the prosecution to move for cancellation of bail in case the petitioner abuses the liberty granted and breaches the conditions of bail.

Any observation made hereinabove shall not be taken as an expression on merits of the case and learned Trial Court shall decide ::: Downloaded on - 04/06/2020 20:21:18 :::HCHP 11 the matter uninfluenced by any of observations made hereinabove.

Accordingly, this petition stands allowed in above terms.

The parties shall not insist upon for obtaining certified .

copy(s) of this judgment and shall download the same from the website of the High Court. However, the Registry is directed to send copy of this judgment to learned counsel for the parties through email subject to furnishing email addresses by them, if so required.

    3rd June, 2020(K)                              ( Jyotsna Rewal Dua),
                     r                                     Judge









                                                 ::: Downloaded on - 04/06/2020 20:21:18 :::HCHP

Unlock Advanced Research with PRISMAI

Himachal Pradesh High Court