Ajay Kumar vs State Of H.P
2021 Latest Caselaw 2868 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 929 of 2021 Reserved on: May 25, 2021

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                                       Date of Decision: May 31, 2021





    Ajay Kumar                                                    ...Petitioner





                                Versus
    State of H.P.                                               ...Respondent

    Coram:

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

Whether approved for reporting?1NO

For the petitioner:

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Ms Seema Guleria and Mr. Vipin Pandit,

Advocates.

For the respondent: Mr. Nand Lal Thakur, Additional Advocate General, with Mr. Ram Lal Thakur, Assistant Advocate General and

Mr. Rajat Chauhan, Law Officer.

                        THROUGH VIDEO CONFERENCE
        FIR      Dated             Police Station                Sections





        No.
        27       08.03.2020        Dharampur, District 420, 467, 468,





                                   Solan, H.P.                    471 and 120-B
                                                                  IPC


    Anoop Chitkara, Judge.

The petitioner, incarcerating upon his arrest w.e.f. 05.04.2021 being a conduit in the marketing chain of the sale of the fake degrees racket run by the main accused Raj Kumar Rana,

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

the kingpin and wholly and solely of Manav Bharti University, has come up before this Court seeking regular bail.

2. Earlier, the petitioner had filed the following bail petitions:

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(a) Bail application i.e. Cr.M.A. No.23/22 of 2021, filed on behalf of applicant was dismissed by learned JMIC vide order dated 19.04.2021.

(b) Bail application No.33-S/22 of 2021, filed by the

applicant was also dismissed by the learned Sessions Judge, Solan, District Solan, vide order dated 20.05.2021.

3. In Para 13 of the bail application, the petitioner

declares having no criminal history. The status report also does not mention any criminal past of the accused.

4. Briefly, the allegations against the petitioner are that a complaint filed r by Himachal Pradesh Private Education

Institutions Regulatory Commission and the investigation detected a huge fake degree scam. After that police arrested Chairman of Manav Bharti University, Shri Raj Kumar Rana, and other officials.

Later on, the State Government constituted a Special Investigating Unit and also proceeded to conduct forensic audit of the University

and Administrator to run its affairs. The petitioner has also been arrested in the aforesaid FIR.

5. Ld. Counsel for the petitioner contends that the petitioner is suffering from Epidermal Inclusion Cyst and due to

arrest, he is unable to get himself further medically examined. To support such submission, medical record has been attached as Annexure P-1. It is also argued that the main accused has already been released on bail, as such, there is no point for detaining the co-accused.

6. The alternative contention on behalf of the State is that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.

7. 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

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Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

8. The accused is in custody for more than a month. An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose.

Petitioner's health is also not good and needs medical attention. In the entirety of facts and circumstances peculiar to this case, and the fact that the main accused Raj Kumar Rana was also granted

bail after around 5-6 months; without commenting on the merits

of the case, the stage of the investigation and the period of incarceration already undergone would make out a case for bail.

9. Given the above reasoning, 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.

10. 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.

11. The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Ten thousand (INR 10,000/-), and shall furnish two sureties of Rs. Twenty-five thousand (INR 25,000/-), each, to the satisfaction of the Judicial Magistrate having the jurisdiction over the Police Station conducting the investigation, and in case of non-

availability, any Ilaqa Magistrate. Before accepting the sureties, the concerned Magistrate must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the

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accused before the Court, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.

12. In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in favour of "Chief Judicial Magistrate,

District Solan, H.P.,"

a) 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.

b) Such a fixed deposit need not necessarily be made

from the account of the petitioner and need not be a single fixed deposit.

c) 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.

d) 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.

e) 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.

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

g) 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.

h) 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

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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.

13. 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 to

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.

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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, r 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.

14. 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.

15. In case of non-appearance, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest) that the Government(s) might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of

Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse shall entitle the trial Court to order the transfer of money from the petitioner's bank account(s). However, this

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recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner alone, and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and

that voyage was not for any other purpose/function what so ever.

16. 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.

17. 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.

18. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further

investigation per law.

19. 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.

20. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

21. There would be no need for a certified copy of this order for furnishing bonds. Any Advocate for the petitioner can download this order along with the case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer

or the Court wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

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The petition stands allowed in the terms mentioned above.

Copy Dasti.

Anoop Chitkara, Judge.

    May 31, 2021
    (R.Atal)



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