Amit Kumar Alias Sushil vs State Of H.P
2021 Latest Caselaw 838 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.178 of 2021 Reserved on: Feb 3, 2021.

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                                      Date of Decision: Feb 4, 2021





    Amit Kumar alias Sushil                               ...Petitioner

                               Versus





    State of H.P.                                 ...Respondent
    Coram:

The Hon'ble Mr. Justice Anoop Chitkara, Judge

Whether approved for reporting?1NO ____________________________________________________________________ For the petitioner: Mr. Vipin Pandit, Advocate.

For the respondent: Mr. Rajinder Dogra, Sr. Addl. Advocate r General, with Mr. Anil Jaswal, Additional

Advocate General and Mr. Vikrant Chandel, Deputy Advocate General.

                        THROUGH VIDEO CONFERENCE



        FIR   Dated          Police Station      Sections
        No.
        05    01.11.2019     SV&ACB,             420, 406, 467, 468, 471




                             Shimla, H.P.        and 120B of IPC





    Anoop Chitkara, Judge.

For the allegations of fraud and cheating, the petitioner is

apprehending arrest came up before this Court under Section 438

CrPC, seeking anticipatory bail.

2. Earlier, the petitioner had filed a petition under Section

438 CrPC before the concerned Sessions Court. However, vide order

dated 15.01.2021 Ld. Additional Sessions Judge-I, Shimla, HP,

dismissed the petition on the ground that there are chances of the

Whether reporters of Local Papers may be allowed to see the judgment?

petitioner being absconding and that the petitioner is a habitual

offender.

.

3. Para 9 of the bail petition and status report mentions the

following criminal history:

a) FIR No.7 dated 9.10.2019, registered under Sections 420,406 and 120B of IPC at police station SV & ACB, Solan.

b) FIR No.4 dated 01.10.2019, registered under Sections 420,406 and 120B of IPC at police station SV & ACB, Shimla.

4.

Briefly, the allegations against the petitioner are that the

police officials of SV and ACB Khalini, Shimla has received complaint

from complainant Kamal Kishor to the effect that the bail petitioner

alongwith other co-accused, Aman Kumar, Subey Singh Chaudhary,

Sohan Lal, Ptadeep @ Hunny Vimal Kalra @ Sukhbir, Ranjeet Singh

Kang cheated the complainant and got purchased vehicle in his name

by saying that they will engage his vehicle in a company and

dishonestly got the said vehicle financed in the name of complainant.

It is averred that at the time of delivery of the vehicle from the

company the petitioner alongwith aforesaid co-accused came to Solan

and Shimla in their own vehicle and told the owner of the vehicle to

engage his vehicle in the company and also paid some money to the

owner of the vehicle to make the payment of installment and also

paid the margin money to the company of the vehicle and took the

vehicle with them. Thereafter, the said vehicles were sold in Punjab

and Haryana to some other persons through co-accused Vimal Kalra

and Ranjit Singh Kang by hatching conspiracy in order to cheat the

complainant, committed forgery for the purpose of cheating the

complainant. Based on these allegations, the Police registered the

.

FIR mentioned above.

5. Ld. Counsel for the petitioner contends that during

interim bail, the petitioner joined the investigation, and the

investigator has recovered majority of the amount attributed to him.

He further argues that one of the complainants has agreed to settle

disputes, and thus, the custodial investigation would serve no

purpose whatsoever. The incarceration before the proof of guilt would

cause grave injustice to the petitioner and family.

6. While opposing the bail, Mr. Rajinder Dogra, Ld. Sr.

Additional Advocate General says that although some recovery has

taken place, but the accused is a habitual offender. The alternative

contention on behalf of the State is that if this Court is inclined to

grant bail, such a bond must be subject to very stringent conditions.

7. The investigator has recovered some of the money and

the accused has made some kind of settlement with one of the

victims. This shows that accused is willing to make up the loss of the

money. The conduct of the accused, coupled with the facts and

circumstances peculiar to this case, the petitioner makes out a case

for release on bail.

8. The possibility of the accused influencing the

investigation, tampering with evidence, intimidating witnesses, and

the likelihood of fleeing justice, can be taken care of by imposing

elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5

SCC 1, Para 92, the Constitutional Bench held that unusually,

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subject to the evidence produced, the Courts can impose restrictive

conditions. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15

SCC 570, Para 11, Supreme Court holds that while exercising power

Under Section 438 of the Code, the Court is duty-bound to strike a

balance between the individual's right to personal freedom and the

right of investigation of the police. While exercising utmost restraint,

the Court can impose conditions countenancing its object as

permissible under the law to ensure an uninterrupted and

unhampered investigation.

9. In Sunny Kapoor v State of HP, CrMPM 2168 of 2020,

(Para 30 & 31), this Court after considering the relevant judicial

precedents observed that in reckoning the number of cases as

criminal history, the prosecutions resulting in acquittal or discharge;

or when Courts quashed the FIR; the prosecution stands withdrawn,

or Prosecution filed a closure report; cannot be included. The

criminal history must be of cases where the accused was convicted,

including the suspended sentences and all pending First Information

Reports, wherein the bail petitioner stands arraigned as an accused.

While considering each bail petition of the accused with a criminal

history, it throws an onerous responsibility upon the Courts to act

judiciously with reasonableness because arbitrariness is the

antithesis of law. Although crime is to be despised and not the

criminal, yet for a recidivist, the contours of a playing field are

marshy, and graver the criminal history, slushier the puddles.

.

10. Reasons for superseding criminal history are the effort of

the accused to settle the matter with the victims.

11. Given the above reasoning, coupled with the peculiar

facts and circumstances of the case, the Court is granting bail to the

petitioner, subject to strict terms and conditions, which shall be over

and above and irrespective of the contents of the form of bail bonds in

chapter XXXIII of CrPC, 1973.

12. In Manish Lal Shrivastava v State of Himachal

Pradesh, CrMPM No. 1734 of 2020, after analysing judicial

precedents, this Court observed that any Court granting bail with

sureties should give a choice to the accused to either furnish surety

bonds or give a fixed deposit, with a further option to switch over to

another.

13. Given above, the petitioner shall be released on bail in

the FIR mentioned above, subject to his furnishing a personal bond of

Rs. Twenty-five thousand (INR 25,000/-), and shall furnish two

sureties of a similar amount, to the satisfaction of the Investigator.

Before accepting the sureties, the Attesting Officer must satisfy that

in case the accused fails to appear in Court, then such sureties are

capable to produce the accused before the Court, keeping in mind the

Jurisprudence behind the sureties, which is to secure the presence of

the accused.

14. In the alternative, the petitioner may furnish aforesaid

personal bond and fixed deposit(s) for Rs. Twenty-five thousand only

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(INR 25,000/-), made in favour of "Chief Judicial Magistrate, District

Shimla, H.P.,"

a) The arresting Officer shall give a time of ten working days to enable the accused to prepare a fixed deposit.

b) Such Fixed deposits may be made from any of the banks

where the stake of the State is more than 50%, or any of the stable private banks, e.g., HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account.

c) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

d) If such a fixed deposit is made in physical form, i.e., on

paper, then the original receipt shall be handed over to the concerned Court.

e) If made online, then its printout, attested by any Advocate,

and if possible, countersigned by the accused, shall be filed, and the depositor shall get the online liquidation disabled.

f) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information be sent either by e-mail or by

post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR number.

g) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

h) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa.

i) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if

any, shall be endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged by substitution as the case may be.

.

15. The furnishing of the personal bonds shall be deemed

acceptance of the following and all other stipulations, terms, and

conditions of this bail order:

a) The petitioner to execute a bond for attendance in the concerned Court(s). Once the trial begins, the petitioner shall

not, in any manner, try to delay the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on this very bond, the petitioner also promises to appear before the

higher Court in terms of Section 437-A CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and

in case of any change, the petitioner shall immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, to the Police Station of this

FIR to the concerned Court.

c) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts of the case, to dissuade them from

disclosing such facts to the Police, or the Court, or to tamper with the evidence.

d) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the investigation at all further stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail. Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

e) In addition to standard modes of processing service of

summons, the concerned Court may serve or inform the accused about the issuance of summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any). [Hon'ble

.

Supreme Court of India in Re Cognizance for Extension of

Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020]:

i. At the first instance, the Court shall issue the summons.

ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.

iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non- Bailable Warrants to procure the petitioner's presence and may send the petitioner to the Judicial custody for a

period for which the concerned Court may deem fit and proper to achieve the purpose.

16. During the trial's pendency, if the petitioner repeats or

commits any offence where the sentence prescribed is more than

seven years or violates any condition as stipulated in this order, the

State may move an appropriate application before this Court, seeking

cancellation of this bail. Otherwise, the bail bonds shall continue to

remain in force throughout the trial and after that in terms of Section

437-A of the CrPC.

17. Any advocate for the petitioner and the Officer in whose

presence the petitioner puts signatures on personal bonds shall

explain all conditions of this bail order, in vernacular and if not

feasible, in Hindi.

18. In case the petitioner finds the bail condition(s) as

violating fundamental, human, or other rights, or causing difficulty

due to any situation, then for modification of such term(s), the

petitioner may file a reasoned application before this Court, and after

taking cognizance, even to the Court taking cognizance or the trial

.

Court, as the case may be, and such Court shall also be competent to

modify or delete any condition.

19. This order does not, in any manner, limit or restrict the

rights of the Police or the investigating agency from further

investigation per law.

20. Any observation made hereinabove is neither an

expression of opinion on the merits of the case, nor shall the trial

Court advert to these comments.

21. In return for the protection from incarceration, the Court

believes that the accused shall also reciprocate through desirable

behavior.

22. There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can

download this order along with case status from the official web page

of this Court and attest it to be a true copy. In case the attesting officer wants to verify the authenticity, such an officer can also verify its

authenticity and may download and use the downloaded copy for attesting bonds.

The petition stands allowed in the terms mentioned above.

Anoop Chitkara, Vacation Judge.

February 04, 2021 (R. Atal)