Punjab-Haryana High Court
Anshul Bansal vs State Of Haryana on 12 October, 2021
CRM-M-43121-2021 -1-
104
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-43121-2021
Date of decision : 12.10.2021
Anshul Bansal ...Petitioner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE VIKAS BAHL
Present: Mr. Shreenath A. Khemka, Advocate for the petitioner.
Mr. Praveen Bhadu, AAG, Haryana.
Mr. Gurjot Singh Sadhrao, Advocate for the complainant.
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VIKAS BAHL, J. (ORAL)
Prayer in the present petition is for grant of anticipatory bail to
the petitioner in FIR No.357 dated 08.04.2016 registered under Sections
406, 420, 506, 120-B, 467, 468, 471 read with Section 34 of the Indian
Penal Code, 1860 at Police Station City Karnal.
Learned counsel for the petitioner has submitted that in the
present case, the FIR was registered on 08.04.2016 and in the said FIR,
although, the petitioner was also made co-accused alongwith one Ganesh
Bindal and Vijender Bansal but primarily the payments, as detailed in page
24 of the paper book, have been made into the account of Ganesh Bindal
and not to him. It is further submitted that even in the order dated
26.08.2016 (Annexure P-2) passed by the Additional Sessions Judge, Karnal
in the Criminal Revision filed by the State of Haryana, the argument of
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Public Prosecutor has been noticed in para 3 of the same to the effect that
the said Ganesh Bindal had suffered a disclosure statement wherein he had
offered to get effected the recovery of an amount of Rs.1,22,25,000/- from
various persons and thus, his police remand of 5 days was sought. Reference
has also been made to the order dated 14.10.2016 (Annexure P-3) vide
which the said Ganesh Bindal had been granted the concession of regular
bail by the Additional Sessions Judge, Karnal. A specific reference has been
made to para 4 of the same, wherein the stand of the prosecution to the
effect that the petitioner is innocent despite the fact that he was involved in
entire transaction for which he was named in the FIR, has also been noticed.
It is submitted that the challan in the present case was filed against the said
Ganesh Bindal and it is only subsequently that the complainant had moved
an application for involving the petitioner in the case. It is submitted that on
29.03.2019 (Annexure P-7), the petitioner was granted interim protection
which had been ultimately dismissed by the impugned order dated
15.09.2021 (Annexure P-11) after a period of more than 2 years and 2
months. It has been submitted that the petitioner has joined the
investigation.
Notice of motion.
On advance notice, Mr. Praveen Bhadu, AAG, Haryana,
appears and accepts notice on behalf of the State and Mr. Gurjot Singh
Sadhrao, Advocate appears on behalf of the complainant and have submitted
that they are fully prepared to argue the matter and assist this Court. It is
their submission that in the present case, after the interim protection was
granted, there was a settlement dated 24.07.2019 (Annexure P-8) to which
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the present petitioner was also the signatory and although, the petitioner has
joined the investigation but since the money has not been paid by the
petitioner and he has not respected the terms and conditions of the said
agreement, thus, it is prayed that the anticipatory bail of the petitioner be
dismissed.
In rebuttal, learned counsel for the petitioner has submitted that
the present dispute is primarily a civil dispute and the petitioner was found
to be innocent even by the prosecution side and there is no new material to
show the involvement of the petitioner. He has also relied upon the
judgment of the Hon'ble Supreme Court in Biman Chatterjee Vs. Sanchita
Chatterjee and another, CRA-193-2004, decided on 10.02.2004, to contend
that mere non-fulfillment of the terms of the compromise cannot be a
ground for cancellation of bail. The relevant portion of the judgment is as
under:-
"Having heard the learned counsel for the parties, we
are of the opinion that the High Court was not justified in
cancelling the bail on the ground that the appellant had
violated the terms of the compromise..... That apart non-
fulfilment of the terms of the compromise cannot be the
basis of granting or cancelling a bail. The grant of bail
under the Criminal Procedure Code is governed by the
provision of Chapter XXXIII of the Code and the provision
therein does not contemplate either granting of a bail on the
basis of an assurance of a compromise or cancellation of a
bail for violation of the terms of such compromise. What the
court has to bear in mind while granting bail is what is
provided for in Section 437 of the said Code. In our
opinion, having granted the bail under the said provision of
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law, it is not open to the trial court or the High Court to
cancel the same on a ground alien to the grounds mentioned
for cancellation of bail in the said provision of law.
Therefore, in our opinion, the High Court has erred in
passing the impugned order."
Learned counsel for the petitioner has submitted that in the
abovesaid case, the compromise was admitted whereas in the present case, it
was even disputed. It is further submitted that Kerala High Court in Sreelal
Vs. Murali Menon and another, Crl.M.C.-1864-2014 decided on
10.07.2014, has held that the agreement entered into before the Mediation
Centre, would not become final till the time there is a seal of the Court and
the Criminal Court is not to rely upon the same. The relevant portion of the
said judgment is reproduced hereasunder:-
"12. Then, the question is what is to effect of mediation
agreement in a criminal matter. Admittedly, if the matter is
referred for mediation, the mediator is not acting neither as
Adalath nor as an Arbitrator or Conciliator to resolve the
disputes by passing an award either under the provisions of
Legal Services Authorities Act or under the provisions of the
Arbitration and Conciliaiton Act. Even if, the matter is
referred in a civil case for mediation under section 89 of the
Code of Civil Procedure, even then, the mediator is not
passing any judgment, but he is only facilitating the parties
to arrive at the settlement and help them to draw the
mediation agreement and after the agreement is signed by
the parties, and counter signed by the Advocates, then, it
will be forwarded to the Court which referred the matter
and that Court will pass a decree on the basis of the
agreement applying the principle under Order 23 Rule 3 of
Code of Civil Procedure accordingly. Till, the seal of the
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court is affixed on the agreement, and a decree is passed on
that basis that agreement, it has no legal effect in the eye of
law. So, even if a mediation agreement reaches the criminal
court, agreeing to settle the issue on certain terms, the
criminal court cannot rely on that agreement and pass a
civil decree, relegating the parties to get the amount
realized by filing execution petition before the Civil Court
and it can only on the basis of the evidence either convict or
acquit the accused and if the case is compounded, if it is a
compoundable offence, then it can record compounding and
that compounding will have the effect of an acquittal under
section 320(8) of Code of Criminal Procedure."
This Court has heard the learned counsel for the parties and
perused the paper book.
It is not in dispute that the FIR in the present case was
registered on 08.04.2016. As per the FIR, the primary accused was Ganesh
Bindal as the amount was stated to have been paid to Ganesh Bindal. In fact,
even in the order dated 26.08.2016 (Annexure P-2) passed by the Additional
Sessions Judge, Karnal in Criminal Revision filed by the State of Haryana,
the argument of Public Prosecutor was noted in para 3 to the effect that the
said Ganesh Bindal had offered to get effected the recovery of the total
amount of Rs.1,22,25,000/- from various persons and thus, his police
remand of 5 days had been sought. It is further clear that in the present case,
the petitioner was initially found innocent by the prosecution side itself as is
apparent from reading of para 4 of order dated 14.10.2016 (Annexure P-3).
The challan in the present case has already been filed against Ganesh
Bindal. Apparently, subsequently an application had been moved by the
complainant on the basis of which the petitioner was again sought to be
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roped in. The present case is based on the documents and the petitioner was
even granted the interim protection vide order dated 29.03.2019 (Annexure
P-7) which continued for a period more than 2 years and 2 months and the
petitioner had joined the investigation and never misused the said
concession and thus, based upon opposition to grant anticipatory bail solely
on the ground that there was a settlement which had taken place which has
not been honoured by the petitioner, the petitioner cannot be non-suited in
the present case. It will always be open to the party to seek implementation
of the settlement, if any, in accordance with law in civil proceedings. The
said agreement, as per the law cited by the learned counsel for the petitioner,
till the time is not affirmed by the Court, cannot be made the sole basis for
rejecting the bail application of the petitioner.
Keeping in view the abovesaid facts and circumstances, the
present petition is allowed and the petitioner is granted the concession of
anticipatory bail subject to the conditions envisaged under Section 438(2) of
Cr.P.C. However, the petitioner shall join the investigation as and when
called upon to do so.
However, nothing stated above shall be construed as an
expression of opinion on the merits of the case and the trial would proceed
independently of the observations made in the present case which are only
for the purpose of adjudicating the present bail application.
12.10.2021 (VIKAS BAHL)
Pawan JUDGE
Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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