Himachal Pradesh High Court
Decided On : 19.11.2024 vs State Of Himachal Pradesh on 19 November, 2024
Author: Virender Singh
Bench: Virender Singh
2024:HHC:11819
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No.2404 of 2024
Decided on : 19.11.2024
Vivek Kumar ...Applicant
Versus
State of Himachal Pradesh ...Respondent
Coram
The Hon'ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1
For the applicant : Mr. Sative Chauhan, Advocate.
For the respondent : Mr. Tejasvi Sharma and Mr. H.S.
Rawat, Addl. Advocates General,
assisted by ASI Ramesh Chand, IO,
PS Kandaghat, District Solan.
Virender Singh, Judge.
Apprehending his arrest, in case FIR No.104 of
2024 dated 23.10.2024 (hereinafter referred to as the 'FIR
in question'), under Sections 318(4), 316(2), 324(4) of the
Bharatiya Nyaya Sanhita, 2023 (hereinafter referred to as
the 'BNS'), registered with Police Station, Kandaghat,
District Solan, H.P., the applicant has filed the present
application under Section 482 of the Bharatiya Nagarik
Suraksha Sanhita, 2023 (hereinafter referred to as 'BNSS').
2. By way of the present application, the applicant
has sought the indulgence of this Court to direct the
I.O/police of Police Station Kandaghat, to release him on
Whether Reporters of local papers may be allowed to see the judgment? Yes.
2 2024:HHC:11819
bail, in the event of his arrest, in the above-mentioned
case/FIR.
3. According to the applicant, he is a law-abiding
citizen and has falsely been implicated, in this case, at the
instance of complainant-Hari Nand Sharma, with whom,
he is having multiple civil litigations. He has given the
details of those cases, which read as under:-
"a) Civil Suit No.77/2022 was filed with the
Hon'ble High Court of HP and the same is listed
on 08.11.2024.
b) CWP No.2705/2021 titled Hari Nand Sharma
Versus State of H.P. and ors. where the
petitioner was made a respondent and the same
was later withdrawn by the complainant of this
FIR dated 15.06.2022.
c) Civil Suit No.75/2022 titled Smt. Ram Dei
Versus Hira Nand was filed with the Hon'ble
High Court of HP and later transferred due to
pecuniary jurisdiction change to Solan H.P."
4. According to him, the complaint, made by the
complainant, is based purely upon civil dispute and
thereafter, he has filed the application, under Section 175
of BNS, before the learned Judicial Magistrate First Class,
Kandaghat, District Solan, on the basis of
misrepresentation of the fact. Later, the said application
was allowed vide order dated 01.10.2024 and the FIR in
question has been lodged.
5. According to the applicant, property in dispute
was leased out by the complainant in the year 2018 to the
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applicant and as such, there was no element of cheating,
involved in the present case.
6. On the basis of above facts, certain
undertakings have been given on behalf of applicant, for
which, the applicant is ready to abide by, in case, any
direction is issued to the police/I.O., in this case.
7. When put to notice, the police has filed the
status report on 28.10.2024, disclosing therein, that on
23.10.2024, a complaint was received from the Court of
learned JMFC, Kandaghat, along with order, mentioning
therein the following facts:-
"1. That the applicant filed a complaint with the
Station House Officer, Police Station, Kandaghat,
Distt. Solan, HP dated 6.1.2024 against Shri
Vivek Kumar, his partners, bank officials and
revenue officials for committing the offences of
cheating, criminal breach of trust and mischief
inter alia on the facts detailed herein below :-a)
That the applicant is the owner of land
comprised in Khata No. 8, Khatauni No. 12,
Khasra No. 3,6,26 and 27 total measuring 27-2
Bighas, which is situated in Mauza Kalhog,
Tehsil Kandaghat, District Solan. H.P and had
been carrying on agricultural work on aforesaid
land for the last number of years.b) That one
Shri Vivek Kumar S/O Sh. Ravi Kumar resident
of village Amred, Tehsil Khundian, District
Kangra, H.P approached the applicant for taking
portion of his aforesaid land on lease for a fixed
period. After negotiations, the applicant agreed
to lease out part of his land measuring 24-02
Bighas for specific use i.e. agriculture,
horticulture, animal husbandry and ecotourism
with a clear understanding that after the
termination of lease, the land will be handed
over to the applicant in such proper condition so
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that applicant can again carry out agricultural
work on the said land. C. That the land agreed
to be leased out was handed over to said Shri
Vivek Kumar after execution of lease deed dated
16.1.2018 duly registered in the office of Sub-
Registrar, Kandaghat and the agreed amount as
per terms and conditions of the lease deed was
paid to the applicant for and upto the year 2020.
The copy of lease deed is annexed as
ANNEXURE C-1. d) That after execution of the
lease deed, said Shri Vivek Kumar constituted a
registered partnership firm under the name and
style of "Mountain Eco Tourism" and thereafter
instead of applying for registration of Eco
Tourism project in the name of partnership firm
applied in his individual name and got the
provisional registration done with the name of
"Mountain Eco Health Resort" for cottages and
tents. Thereafter, said Shri Vivek umar contrary
to the purpose for which the land was leased
out, in connivance with the officials of the
Tourism Department got the registration done
with changed name of "Banjara Mountain
Retreat" for Hotel & Restaurant. e) That said Shri
Vivek Kumar with dishonest and fraudulent
intentions in order to cheat the applicant in
connivance with the revenue and bank officials
created a charge upon the aforesaid leased land
by mortgaging the said leased land with UCO
Bank, Nigam Vihar Branch Chotta Shimla for an
amount of Rs.68,74,000/-without any express or
implied authorization to do so and without
knowledge of the complainant. It may not be out
of place to mention here that in the lease deed,
said Shri Vivek Kumar was not given any right
to mortgage the leased land with any institution
and the said land was only given for the
purpose of using the land for agriculture,
horticulture, animal husbandry and eco-tourism
and as per the covenants of the lease deed after
the termination of the lease, the land was to be
restored in proper condition so as to use it again
for the agriculture purpose. The copy of the lease
deed is annexed with the complaint and the
contents of the same are evident of the fact that
the applicant had not given any power or
authorization to said Shri Vivek Kumar to create
any type of charge then burden or create
mortgage on the leased property, f) That the
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connivance of the Bank Officials evident from
their act and conduct that at the time of
advancing the loan, they were having the copy
of the lease deed and the copy of the jamabandi
in which undisputedly the applicant property in
violation of the conditions of the lease deed by
constructing a Hotel upon the same and
thereafter, without any authority in connivance
with the revenue and bank officials created an
equitable mortgage upon the said leased land.
The said act apart from cheating also comes
within the mischief of criminal breach of trust. j)
That not only this the said Shri Vivek Kumar
with an intention to cause wrongful loss to
applicant destroyed his property by constructing
permanent structures and diminished the value
of land and deprived the applicant from using
the same for agriculture purposes after the
termination of the lease deed and thereby made
himself liable for committing the offences of
mischief. k) That from the facts submitted herein
above the following facts are evident from his act
and conduct :-i) That the intentions of the said
Shri Vivek Kumar were dishonest right from the
beginning when he approached the applicant.
The land was entrusted to him under the lease
agreement and undisputedly he was having a
dominion over the property and he dishonestly
used the said property in Molation of the legal
contract and thereby committed offence of
eriminal breach of trust. ii) That said Shri Vivek
Kumar with dishonest and fraudulent intentions
by deceiving induced the applicant to deliver his
property to him and he in connivance with Bank
officials of UCO Bank Nigam Vihar Branch
Shimla and the revenue officials without any
express or implied authorization mortgaged the
said property for an amount of Rs.68,74,000/-
and got the mortgage deed registered with
revenue authorities. Both the bank officials and
revenue authorities were aware of the fact that
the applicant was the recorded owner as per
Jamabandı and there was no right given to said
Shri Vivek Kumar to get the land mortgaged and
despite this all in connivance with each other
with dishonest and fraudulent intentions
achieved their goal and thereby committed
offence of cheating. iii) That said Shri Vivek omar
with the intention to cause wrongful loss to
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applicant instead of constructing tents and use
the property for eco-tourism destroyed his
property by constructing permanent structures in
connivane with the officials of the Tourism
Department and thereby diminished the value of
his land and deprived the applicant for using the
same for agriculture purpose after termination of
lease and thereby committed mischief. 2. That
on the facts detailed hereinabove the applicant
submitted above referred complaint dated
6.1.2024 to the Station House Officer,
Kandaghat, Distt. Solan, H.P. for taking action
against Shri Vivek Kumar along with other
officials of Bank, Revenue and Tourism
Department for was and is the recorded owner.
It may also be appreciated that before advancing
loan to any individual. his case is always
examined from the angle of his entitlement
including steps to secure the payment of loan
amount. The bank officials and the said Shri
Vivek Kumar were having the knowledge that
zapplicant was the recorded owner of the said
property and through the lease deed the copy of
which was with the bank officials as well as
with the said Shri Vivek Kumar, he was not
authorized to create a charge upon the property
of the applicant and despite this fact, the bank
officials while advancing the abovesaid loan
created a charge of equitable mortgage upon
land illegally in order to cause wrongful loss to
applicant and wrongful gain to said Shri Vivek
Kumar. Which fact can be appreciated from the
perusal of Sanction letter dated 09.09.2019
addressed to the firm of the applicant annexed
herewith as ANNEXURE C-2. g) Similarly, the
mortgage deed registered by Subregistrar.
Kandaghat is in violation of law and procedure.
The connivance of sub-registrar can be
appreciated from the fact that despite having
knowledge through the lease deed which was
also the part of the record that Shri Vivek Kumar
was not authorized to create mortgage upon
land, allowed the registration of the same
contrary to law and procedure in order to help
the said Shri Vivek Kumar to achieve his illegal
designs of depriving applicant from the property.
The office of the Sub-registrar. Kandaghat
recorded Rapat No. 335 dated 20/04/2022 in
the Jamabandi(2019-20) to the effect that the
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land has been mortgaged with the bank for Rs.
68,74,000/- On application under RTI by the
complainant on 02/12/2023, the Sub- registrar.
Kandaghat on 05/03/2024 provided an extract
copy of memorandum of mortgage dated
05/04/2022. Copies of Rapat and memorandum
are enclosed herewith as ANNEXURE C-3 Colly.
h) That from the act and conduct of Shri Vivek
Kumar it is evident that his intention right from
the beginning were dishonest and with such
dishonest and fraudulent intentions he by
deceiving induced applicant to deliver the above-
said property through the abovesaid lease deed
and after getting possession of the same he
constructed a Hotel contrary to the purpose for
which the said land was leased out to him and
thereafter created a charge upon the same land
without any expre implied authorization. i) That
the said Shri Vivek Kumar was entrusted with
the above-said property through the lease deed
use the same for the purpose of agriculture,
horticulture, animal husbandry and eco-tourism
and was having dominion over the said property
but with dishonest intentions firstly he used the
having committed offences of cheating, criminal
breach of trust and mischief with the request to
register the FIR and investigate the matter. The
copy of lease deed and Rapat No. 335 were also
enclosed with the complaint. Copy of the
application is annexed herewith as Annexure C-
4. 3. That the Station House Officer, Kandaghat
despite having informed through the above said
complaint of the persons named to have
committed a cognizable offence did not register
FIR against the above named persons and for
some extraneous reasons suo moto started
inquiry into the complaint and without there
being any reason or evidence concluded that the
matter is of civil nature and got recorded the
same in GD No. 035 dated 29.1.2024, a copy of
inquiry report is annexed herewith as
ANNEXURE C-5 and copy of GD No. 035 is
enclosed herewith as ANNEXURE C-6.4. That
while recording the G.D no. 035, Annexure C-3,
the SHO adopted the procedure which is alien to
the criminal law by recording the statement of
some of the persons named in the complaint to
have committed offences and blindly accepting
the same to be a gospel truth. Further, the SHO
8 2024:HHC:11819
before reaching on such an erroneous conclusion
did not made any inquiry from the concerned
departments from where he could have
ascertained the truth. Notably the statement of
the applicant was also recorded but no reasons
were assigned for disbelieving the facts
disclosed by the applicant to substantiate his
version of the complaint. The copies of the
statements are annexed herewith as ANNEXURE
C-7 (Colly). 5 That such action of the Station
House officer was against the mandate of law
and the Judgement of the Hon'ble Supreme court
in case titled Lalita Kumari Versus Government
of Uttar Pradesh and others, 2014 (2) Supreme
Court Cases page 1 wherein the Hon'ble
Supreme Court while dealing with the issue that
whether registration of FIR is mandatory under
section 154 of Cr.P.C in case the information
scloses commission of a cognizable offence held
that registration of FIR is mandatory if the
information discloses commission of a cognizable
offence and no preliminary inquiry is permissible
in such a situation which is a general rule and
must be strictly complied with. The Hon'ble
Supreme court while holding that registration of
FIR is mandatory under section 154 Cr.P.C, if
the information discloses commission of a
cognizable offence and no preliminary enquiry is
permissible specifically held that a police officer
cannot avoid his duty of registration of FIR if
cognizable offence is disclosed and in case
despite having disclosed commission of
cognizable offence, the police officer did not
register the FIR held that action must be taken
against erring officials who did not register the
FIR.6. That prima-facie the facts narrated in the
complaint disclose the commission of a
cognizable offence, the SHO concerned firstly
was under a legal obligation to register FIR and
then proceed further as per chapter XII of the
Cr.P.C (now repealed vide Bharatiya Nagarik
Suraksha Sanhita 2023 Chapter XII) and
secondly could not have resorted to making a
suo-motu inquiry which as submitted herein
above was alien to the procedure laid down
under the law. 7. That under the circumstances
the applicant had no other option except to
approach the Superintendent of Police as per the
provisions of Section 154(3) Cr.P.C and as per
9 2024:HHC:11819
new amended provisions of Section 173(4) of
Bharatiya Nagarik Suraksha Sanhita 2023 for
making an impartial inquiry into the factual
matrix disclosed in the complaint and order the
registration of FIR so that the offenders can be
brought to books. The copy of the complaint
made to the Superintendent of Police Solan is
annexed herewith as ANNEXURE C-8. 8. That
shockingly the Superintendent of Police, Solan
by brushing aside the mandate of law and the
judgment of the Hon'ble Supreme Court referred
above believed the version of the subordinate
staff and instead of ordering the registration of
FIR, collected documents to strengthen the
version of the SHO that the case is of civil
nature.9. That both the police authorities while
concluding that the case is of civil nature erred
in not appreciating the fact that even if the loan
has been taken by mortgaging the structures
over the land, the offence complained for was
made out as the applicant at no point of time
authorized said Shri Vivek Kumar to mortgage
the land or the structures constructed upon the
same vide lease deed through which he was
having the dominion over the property of the
applicant The copy of is already annexed
herewith. as Annexure C-1, for the kind perusal
of this Learned Court. X Sub Dan mad the lease
deed 10. That the other facts narrated in the
complaint against said Shri Vivek Kumar
committing Criminal Breach of Trust, Mischief
and Cheating which itself show the commission
of cognizable offence were neither investigated
nor any finding was given. The Superintendent
of Police even did not make any endeavor to
communicate his opinion to the applicant and it
is only through the RTI that the applicant came
to know the findings of the Superintendent of
Police. The copies which of are annexed herewith
as Annexure C-9 (Colly). 11. That since the SHO,
Kandaghat and S.P, Solan have failed
discharging their statutory duty and dealt with
the case against the mandate of law hence the
applicant has no other remedy except for filing
the present complaint. It is, therefore, humbly
requested that keeping in view the facts detailed
hereinabove, the appropriate directions may
kindly be issued to Station House Officer,
Kandaghat, Distt. Solan to register a FIR against
10 2024:HHC:11819
Shri Vivek Kumar along with other officials of
Bank, Revenue and Tourism Department for
having committed offences of cheating, criminal
breach of trust and mischief or in alternate may
kindly take the cognizance and treat the present
application as a complaint, in the interest of
justice."
8. On the basis of above facts, police registered the
case and thereafter, the criminal machinery swung into
motion.
9. From the complainant, Sale Deed No.28/18
dated 16.01.2018 was also taken into possession.
Mortgage deed was also obtained from the concerned bank
and information was also sought from the Tourism
Department about the fact as to whether the land in
question is fit for eco-tourism or not.
10. On the basis of above facts, interim protection
was awarded in favour of the applicant on 28.10.2024,
with a direction to join the investigation.
11. Thereafter, the matter was adjourned for
11.11.2024 and on 11.11.2024, the matter was adjourned
for today.
12. Today, police has filed the supplementary
status report disclosing therein that the applicant has
joined the investigation, who has disclosed that he has
obtained the bank loan on the land, obtained on lease,
11 2024:HHC:11819
whereas, according to him, the owner of the said land is
Hari Nand Sharma.
13. On the basis of above facts, a prayer has been
made to dismiss the application.
14. In this case, police has not made any request
that the custodial interrogation of the applicant is required
for the investigation of the case. When, the stand has been
taken by the police, then, the bail application cannot be
dismissed as a matter of punishment, as punishment can
only be inflicted after the full-fledged trial. Even otherwise,
the pre-trial punishment is prohibited under the law.
15. Moreover, the applicant is the permanent
resident of District Kangra, as such, it cannot be
apprehended that in case, the interim order is made
absolute, he may not be available for the trial.
16. Prima facie, it is a case of civil dispute, between
the parties. However, the prosecution would collect the
evidence with regard to the criminal intention of the
applicant.
17. Even otherwise, keeping in view the dispute,
involved in the present case, this Court is of the view that
the applicant is entitled for the relief, as claimed in the
application.
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18. Considering all these facts, this Court is of the
opinion that the relief, which has been granted to the
applicant, vide order, dated 28.10.2024, is liable to be
confirmed. Consequently, interim order, dated 28.10.2024,
is made absolute. Therefore, it is ordered that the applicant
be released on bail, in the event of his arrest, in case FIR
No.104 of 2024 dated 23.10.2024 under Sections 318(4),
316(2), 324(4) of the BNS, registered with Police Station,
Kandaghat, District Solan, H.P., on his furnishing personal
bond, to the tune of ₹50,000/-, with one surety of the like
amount, to the satisfaction of the Investigating Officer. The
bail is granted, subject to the following conditions:
a) That the applicant will join the investigation of
the case, as and when, called for, by the
Investigating Officer, in accordance with law;
b) That the applicant will not leave India, without
prior permission of the Court;
c) That the applicant wills 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
the Court; and
d) That the applicant shall regularly attend the
trial Court on each and every date of hearing and
if prevented by any reason to do so seek
exemption from appearance by filing appropriate
application;
19. Any of the observations, made hereinabove,
shall not be taken as an expression of opinion, on the
13 2024:HHC:11819
merits of the case, as these observations, are confined,
only, to the disposal of the present bail application.
20. The applicant is directed to move regular bail
application, when chargesheet will be filed in the
competent Court of law.
21. It is made clear that the respondent-State is at
liberty to move an appropriate application, in case, any of
the bail conditions, is found violated by the applicant.
( Virender Singh )
Judge
November 19, 2024
( Gaurav Thakur )
