Sarmad vs State Of Himachal Pradesh
2021 Latest Caselaw 1052 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No. 286 of 2021 Decided on: 11.02.2021

.

    Sarmad                              ......petitioner





                                           Versus





    State of Himachal Pradesh               ...... respondent

........................................................................................ Coram Ms. Justice Jyotsna Rewal Dua, Vacation Judge.

Whether approved for reporting?1

For the petitioner : r Mr. Vivek Sharma, Advocate.

    For the respondent :                     Mr. Hemant Vaid, Mr. Arvind

                                             Sharma,    Additional Advocate
                                             General, Mr.     Raju Ram Rahi
                                             and Mr. Amit Kumar    Dhumal,
                                             Deputy Advocate General.



                               (through video conference)

    Jyotsna Rewal Dua, Vacation Judge (Oral)

Instant petition has been moved for grant of anticipatory

bail under Section 438 of Criminal Procedure Code in FIR No.162/2017,

dated 02.08.2017, registered under Sections 420, 467, 468, 471 and 120B

of the Indian Penal Code, at Police Station Kullu, District Kullu,

Himachal Pradesh.

2. Interim protection was granted to the petitioner vide order

dated 09.02.2021, subject to the conditions stipulated therein.

Whether reporters of the local papers may be allowed to see the judgment?

3. Heard learned counsel for the parties and perused the status

report, which is taken on record.

.

4. The FIR was registered on the basis of a complaint lodged

by one Sanjay Kumar, the gist of which was, that one Pankaj Sharma of

Rurki District Haridwar had expressed his intention to the complainant

for purchasing some land from Smt. Kashmiri Devi against payment of

2% commission and requested the petitioner to facilitate the land deal.

The complainant accepted the request and acted in furtherance thereto.

He contacted Smt. Kashmiri Devi for purchasing the land. Smt.Kashmiri

Devi projected that she had purchased the land from the bail petitioner.

The land situated in Tehsil Rurki District Haridwar was stated to be

around 15 bigha. The land was agreed to be purchased for about

Rs.4,35,00,000/-. On request of Pankaj Sharma, the complainant

inspected the land actually owned by the bail petitioner. In the process

of negotiating the purchase of the land, the complainant statedly paid

Rs.10,00,000/- to Smt. Kashmiri Devi and Rs.2.80,00,00/-to an advocate

by the name of Sh. Sanjeev. Subsequent thereto Pankaj Sharma stopped

receiving the complainant's telephone calls. Apprehending that he

might have been duped of his money, the complainant inspected the

revenue entries and came to know that the petitioner was not the

exclusive owner of the land in question. Realizing that he has been

duped, petitioner lodged a complaint with the police on the basis of

which, instant FIR was registered on 2.8.2017 at police station Kullu.

.

5. Learned Deputy Advocate General opposed the grant of

bail in favour of the petitioner on the ground that the offences with

which the petitioner has been charged are serious and that the petitioner

had been evading the investigation, resultantly, proclamation notice had

to be issued against him in December 2020.

6.

Learned counsel for the petitioner submitted that the

petitioner had no privity of contract executed between Smt. Kashmiri

Devi and the complainant Sanjay Kumar. He was neither a party to the

agreement to sell nor signed any document at the time of the execution

of the agreement in question. The petitioner was not present during

negotiations stated to have been held between the contracting parties.

Learned counsel further submits that Smt. Kashmiri Devi had

approached the petitioner for purchasing the land situated in village

Khatakheri, Pargana Bhagwanpur, Tehsil Roorkee, District Haridwar

and one agreement to sell was executed on 18.5.2017, whereunder she

agreed to buy the land measuring 1.024 hectare out of the total land

measuring 2.1142 hectare i.e. 15 bigha out of 26.5 bigha. However, she

did not abide by the terms mentioned in the agreement and also did not

pay the sale consideration amount mentioned in the agreement. Learned

counsel further submits that the petitioner became aware of registration

of FIR in question only in January 2021, when police visited his place

with proclamation notice. Subsequent thereto he joined the investigation

.

and has been cooperating with the investigating agency. His application

for anticipatory bail has been turned down by the learned Sessions Judge

Kullu on 19.1.2021.

7. As per the status report, the petitioner has complied with

the conditions imposed in the order dated 9.02.2021 and joined the

investigation. The record appended with the petition as well as the status

report reflect that the allegations levelled against the petitioner are

primarily of civil nature. The complainant has not levelled any direct

allegation against the petitioner. At this stage, it cannot be held that the

petitioner is guilty of duping the complainant for an amount of

Rs.12,80,000/-. The main accused Smt. Kashmiri Devi is stated to have

been enlarged on bail by the learned trial Court on 16.5.2018. Status

report does not indicate any previous criminal antecedents of the

petitioner. It is also not the case of respondents that subsequent to grant

of interim protection, the petitioner had tried to temper the prosecution

evidence or influenced the prosecution witnesses. The FIR is of year

2017. To secure the presence of the bail petitioner during trial, stringent

conditions are being imposed upon him.

Considering the facts and circumstances of the case, the

mode and manner of commission of offences alleged against the

petitioner, no fruitful purpose will be served by sending the petitioner to

judicial custody, hence, the present petition is allowed and the interim

.

order passed on 09.02.2021 is made absolute, subject to following

conditions:-

(i) Petitioner is directed to join the 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;

(ii). Petitioner shall not temper with the evidence or hamper the investigation in any manner whatsoever.

Petitioner shall not threaten or intimidate the

complainant.

(iii). Petitioners will not leave India without prior permission of the Court;

(iv). Petitioner shall not 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;

(v). 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 their Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Numbers, if any; &

In case of violation of any of the terms & conditions of the

bail, respondent-State shall be at liberty to move appropriate application

for cancellation of the bail. It is made clear that observations made above

are only for the purpose of adjudication of instant bail petition and shall

not be construed as an opinion on the merits of the matter. Learned Trial

Court shall decide the main matter without being influenced by the above

.

observations.

With the aforesaid observations, the present petition stands

disposed of, so also the pending miscellaneous applications, if any.

Jyotsna Rewal Dua

Vacation Judge February 11, 2021 (Rohit)