Uttarakhand High Court
BA2/79/2021 on 18 November, 2021
Office Notes,
reports, orders or
proceedings or
SL. No Date COURT'S OR JUDGES'S ORDERS
directions and
Registrar's order
with Signatures
BA 2nd No.79 of 2021
Hon'ble Sharad Kumar Sharma, J.
Mr. Suresh Chandra Bhatt, Advocate, for
the applicant.
Mr. Dinesh Chauhan, Brief Holder, for
the State of Uttarakhand.
This is the second bail application, which
has been preferred by the applicant seeking his
release for his alleged involvement in the
commission of the offences under Sections 395,
398 and 412 of IPC, which has been registered
against him, at Police Station Premnagar,
District Dehradun.
Initially, when the bail application was
considered by this Court, the same has been
rejected by an order dated 20.07.2020, on the
ground that in accordance with the stand taken
by the Government Advocate, the applicant was
shown to be carrying a criminal history, and the
details of the criminal history, as it was being
carried by the applicant was detailed in
paragraph No.12, of the objection to the bail
application filed by the Government Advocate.
Against the rejection of the said bail
application on 20.07.2020, the matter travelled
to the Hon'ble Apex Court, wherein, by way of
an SLP No.5303 of 2020, which was dismissed
by the Hon'ble Apex Court on 16.11.2020 with
the following observations:-
"Upon hearing the counsel the Court
made the following
Order
We do not see any reason to interfere
in the matter.
However, considering the fact that the
charge-sheet has been filed, we direct
the Trial Court to take up the matter
and consider whether charges need to
be framed or not.
The Special Leave Petition is,
accordingly, dismissed.
Pending applications, if any, also stand
disposed of."
The Hon'ble Apex Court has left it open
for the Trial Court, to consider as to whether
under the given facts and circumstances of the
case, whether at all the charges are required to
be framed or not. There is no material brought
on record to show, as to what is the stage of the
trial, and whether the charges as a consequence
of the Hon'ble Apex Court judgment has been
framed by the Trial Court, so far or not.
This Court by an order dated 10.11.2021,
had called a report from the In-charge District
Judge, in that regards, and there is an office
report of the Registry; that the copy of the same
has already been sent, but no response has yet
been received.
The applicant has argued to still press the
bail application without waiting for the report
from the trial court, from the following
perspectives:-
"(1) That the basis of the applicant
alleged engagement and involvement in
the commission of the offences, is based
upon the theory of recovery of the stolen
articles from him, he submits that it
cannot be exclusively taken to draw an
inference as to be the basis for his
alleged involvement in the commission
of the offences, as complaint of in the
FIR, and hence he deserves to be
released on bail.
(2) He further submits that in the other
criminal cases which were detailed in his
criminal history, which was also detailed
in the earlier order, in all those cases, the
applicant has been bailed out, as it would
be reflected from the orders itself, which
had been placed on record by the
applicant by way of the supplementary
affidavit dated 07.09.2021.
(3) He further submits, that if the set of
allegations which had been levelled in
the FIR, is taken into consideration, in
fact, the initial offence which was
registered against him were argued, that
it is not said to be made out, and only the
implications of the applicant has been
said to have been made out under section
412 of IPC.
(4) He submits, that if the FIR itself is
taken into consideration in fact it doesn't
satisfies the ingredients of Section 395 of
IPC, to be read with Section 391 of IPC,
for the purposes of applicant alleged
involvement in the commission of the
offences under Section 395 of IPC.
(5) In that eventuality and for the above
rationales, he submits that the applicant
would be entitled to be granted bail for
his alleged involvement in the said
offences and coupled with the fact, that
he is languishing in jail since 11.03.2020.
(6) Particularly the learned counsel for
the applicant had made a reference to the
pleadings which had been raised by him
in paragraph No.6, of the rejoinder
affidavit, wherein, an exception has been
carved out by him, because of the fact
that the charge-sheet has been submitted
under Sections 395, 398 and 412 of IPC,
which is said to have been proved against
him, by the Investigating Officer,
whereas, the other offences under
Section 307 and 392 of the IPC, the
applicant was not shown to have been
involved in the commission of the said
offences, which were initially registered
and mentioned in the FIR.
After having heard the learned counsel
for the applicant, and considering the gravamen
of the argument which had been extended by
the applicant, I am of the view, that the fact,
that the applicant has been granted bail in other
offences, which were earlier complaint of
against him, cannot be exclusively a ground or
the basis to create an example, to be granted
bail, because grant of a bail in other connected
matters, is exclusively a discretionary power,
which is exercised by the Court, secondly it
cannot carry a precedent for claiming any parity
on the basis of the grant of bail in the earlier
offences, rather it reflects the repetition of
commission of offence on release on bail.
Coupled with the fact that the argument
which had been extended, that the applicant
was not involved in the commission of offence
and the theory of recovery, which has been
made against him, do not satisfy the test of
evidence, I am of the view, that it is still a
subject matter to be considered by the learned
Trial Court on merits based on evidence, as to
whether at all in the light of the judgment and
directions of the Hon'ble Apex Court, the
charge in relation to the commission of
offences, which is shown to have been prima
facie established against the applicant by the
Investigating Officer, is required to be framed
or not. As per directions of the Hon'ble Apex
Court.
It has been argued by the learned counsel
for the applicant, though for the first time in
this second bail application that the applicant
too is dealing with the jewellery business, and
hence the recovery of the stolen articles from
him, may not exclusively directly attribute his
connection with the commission of the
offences, for which the bail has been sought by
the applicant. In fact this could not be
exclusively taken as to be a ground for the
reason being, that it was not the initial
foundation by the applicant, when the first bail
application was presented, and particularly
which was a pre-existing fact at the time when
the first bail application was being considered
by this Court.
In that view of the matter, I am not
inclined to interfere, and the second bail
application is accordingly rejected.
(Sharad Kumar Sharma, J.)
18.11.2021
NR/
