Anoop Katoch vs State Of Himachal Pradesh
2021 Latest Caselaw 888 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 55 of 2021

.

                                 Reserved on:           29.01.2021.
                                 Date of Decision:      04.02.2021.





    Anoop Katoch                                                         ...Petitioner

                                 Versus





    State of Himachal Pradesh                                           ...Respondent.
    Coram:

The Hon'ble Mr. Justice Anoop Chitkara, Vacation Judge.

Whether approved for reporting?1

For the petitioner: Mr. Dushyant Dadwal, Advocate.

For the respondent: Mr. Sudhir Bhatnagar, Additional Advocate General with

Ms. Seema Sharma, Mr. Narender Singh Thakur & Mr. Kamal Kant, Deputy Advocates General and Mr. Manoj Bagga, Assistant Advocate General.

                          THROUGH VIDEO CONFERENCE


    FIR No.      Dated        Police Station   Sections




    0015         11.01.2021   Palampur, Distt. 420, 504 & 506 of the IPC
                              Kangra H.P.





    Anoop Chitkara, Judge

A seller of a land, who is now apprehending arrest on the complaint of

the buyer on the ground that on the spot the land is less than that mentioned in the

sale deed, has come up before this Court, under Section 438 CrPC, seeking

anticipatory bail.

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

2. A perusal of the petition reveals that the petitioner straightaway filed

the bail petition before High Court, which is permissible given the decision of a three

Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36,

.

(Para 9 & 15), wherein the Full bench holds that a person can directly apply for an

anticipatory bail or regular bail to the High Court without first invoking the

jurisdiction of the Sessions Judge.

3. The bail petition is silent about criminal history, however, Mr.

Dushyant Dadwal, learned Counsel for the bail petitioner states on instructions that

the petitioner has no criminal past relating to the offences prescribing sentence of

seven years and more, or when on conviction, the sentence imposed was more than

three years. The status report also does not mention any criminal past of the accused.

4. Briefly, the allegations against the petitioner are that on 11.1.2021. On

11.01.2021, the Investigator recorded statement of Dr. Sikander Singh Kapoor, under

Section 154 CrPC. He alleged that he retired as Deputy Director, Agriculture, in the

year 2010. He wanted to purchase the property and in this connection, in August

2020, he interacted with one Vikram Singh, who is a property dealer. He was known

to him from some time. After looking at various lands, on 14th September, 2020,

Vikram Singh showed him land of Anoop Katoch at Neugal Cafe. Mr. Anoop

Katoch is a professor in Agriculture University. He said that he owned 725 Sq. Mtrs.

of land, which is in front of his house and he wanted to sell the same as he needed

money to repay the bank loan. He demanded a sum of Rs.1,55,00,000/- (Rs. One

Crore Fifty Five Lac). He also said that he will not enter into any agreement and he

will have to deposit a sum of Rs.1,30,00,000/- in his bank account and also

demanded a sum of Rs.25,000,00/- in cash to save registration charges. After that he

will transfer land mentioned in Khasra No.2304/1770, measuring 725 Sq. Mtr. He

also conveyed that on the spot 1.5 marla of land is more than mentioned in revenue

record. He convinced him not to go to the spot, because it would leak the deal and a

large number of people are already after him to purchase this land. The complainant

.

said that he could not demarcate the said land because Anoop Katoch had asked them

not to do so. He trusted him because he holds the Ph. D. Degree and is working as a

Professor. On 29th September, 2020, the complainant transferred a sum of

Rs.1,30,00,000/- in the account of accused Anoop Katoch. He also handed over a

sum of Rs.25,00,000/- in cash. On 1st October, 2020, Anoop Katoch registered the

sale deed in his name. After that Anoop Katoch also executed Power of Attorney in

favour of the complainant. After 3/4 days the mutation of the sale deed was entered

in the revenue record. Subsequently, he asked Anop Katoch to show him the land,

but instead of coming himself, he sent his agent namely Sh. Manish, when he

carefully noticed and compared the land from Tatima, then he realized that the land

on the spot appears to be less. After that he called for demarcation and measured the

land. It was 618 Sq Mtrs and 107 sq. mtrs.Land was less at the spot. Based on this,

police registered FIR mentioned above

5. Ld. Counsel for the petitioner contends that during interim bail, the

petitioner joined the investigation, and 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, 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.

REASONING:

7. As far as handing over of an amount of Rs.25,000,00/- by cash is

concerned, it was the complainant, who would have saved money of in registration

charges and not the accused. Even otherwise, this allegation appears to be baseless

.

in the absence of receipts. Furthermore, at the time of Registry, sale deed is done on

valuation report.

8. Given above, this allegation appears to be false on the face of it.

Regarding the allegation of less land, the petitioner had admittedly showed

complinant the land from his house. The Registration took place for the agreed land

and if the land on the spot is less, then it is legally open for the complainant to take

appropriate legal action for claiming damages from the petitioner as well as from

getting encroachment freed from the encroachers. In entirety of the facts, it is not a

case which requires custody of the petitioner. Petition allowed.

9. In the facts and circumstances peculiar to this case, the petitioner

makes out a case for release on bail.

10. 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,

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.

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 (INR 25,000/-), made in

favour of "Chief Judicial Magistrate, District Kangra, 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.

23. The petition stands allowed in the terms mentioned above.

Copy Dasti.

Anoop Chitkara, Vacation Judge.

Feb 4, 2021 (tarun).