Amit Kumar Alias Sushil vs State Of H.P

Anoop Chitkara, J

For the allegations of fraud and cheating, the petitioner is apprehending arrest came up before this Court under Section 438 CrPC, seeking

anticipatory bail.

Earlier, the petitioner had filed a petition under Section 438 CrPC before the concerned Sessions Court. However, vide order dated 15.01.2021 Ld.

Additional Sessions Judge-I, Shimla, HP, dismissed the petition on the ground that there are chances of the petitioner being absconding and that the

petitioner is a habitual offender.

Para 9 of the bail petition and status report mentions the following criminal history:

a) FIR No.7 dated 9.10.2019, registered under Sections 420,406 and 120B of IPC at police station SV & ACB, Solan.

b) FIR No.4 dated 01.10.2019, registered under Sections 420,406 and 120B of IPC at police station SV & ACB, Shimla.

Briefly, the allegations against the petitioner are that the police officials of SV and ACB Khalini, Shimla has received complaint from complainant

Kamal Kishor to the effect that the bail petitioner alongwith other co-accused, Aman Kumar, Subey Singh Chaudhary, Sohan Lal, Ptadeep @ Hunny

Vimal Kalra @ Sukhbir, Ranjeet Singh Kang cheated the complainant and got purchased vehicle in his name by saying that they will engage his

vehicle in a company and dishonestly got the said vehicle financed in the name of complainant. It is averred that at the time of delivery of the vehicle

from the company the petitioner alongwith aforesaid co-accused came to Solan and Shimla in their own vehicle and told the owner of the vehicle to

engage his vehicle in the company and also paid some money to the owner of the vehicle to make the payment of installment and also paid the margin

money to the company of the vehicle and took the vehicle with them. Thereafter, the said vehicles were sold in Punjab and Haryana to some other

persons through co-accused Vimal Kalra and Ranjit Singh Kang by hatching conspiracy in order to cheat the complainant, committed forgery for the

purpose of cheating the complainant. Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner contends that during interim bail, the petitioner joined the investigation, and the investigator has recovered majority of

the amount attributed to him. He further argues that one of the complainants has agreed to settle disputes, and thus, the custodial investigation would

serve no purpose whatsoever. The incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

While opposing the bail, Mr. Rajinder Dogra, Ld. Sr. Additional Advocate General says that although some recovery has taken place, but the

accused is a habitual offender. 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.

The investigator has recovered some of the money and the accused has made some kind of settlement with one of the victims. This shows that

accused is willing to make up the loss of the money. The conduct of the accused, coupled with the facts and circumstances peculiar to this case, the

petitioner makes out a case for release on bail.

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.

In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 30 & 31), this Court after considering the relevant judicial precedents observed that

in reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge; or when Courts quashed the FIR; the

prosecution stands withdrawn, or Prosecution filed a closure report; cannot be included. The criminal history must be of cases where the accused was

convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused.

While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with

reasonableness because arbitrariness is the antithesis of law. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of

a playing field are marshy, and graver the criminal history, slushier the puddles.

Reasons for superseding criminal history are the effort of the accused to settle the matter with the victims.

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.

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.

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.

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 Shimla, 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.

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.

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.

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.

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.

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

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.

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

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.

The petition stands allowed in the terms mentioned above.