K.B. Verma, & Ors. vs State of Himachal Pradesh

Since all the petitions arise out of same and similar FIR, same were taken up together for being disposed of by this common judgment.

By way of these petitions filed under Section 438 CrPC, petitioners have prayed for grant of anticipatory bail in FIR No. 102/2016 dated 24.5.2016 under Sections 420, 467, 468, 471, 406 and 120-B IPC, registered at Police Station, Sadar, Shimla, District Shimla, HP. Vide order date 16.1.2017, this Court granted interim bail to the petitioners subject to the condition that they shall join the investigation as and when called by the investigating agency. On 27.1.2017, it was informed that the petitioners have joined the investigation, accordingly, order dated 16.1.2017, was ordered to be continued. However, on 17.2.2017, this Court, after perusing status report having been filed by the police, granted three weeks'' time to the petitioners to deposit a sum of Rs.21,42,000/- in total in the Registry of this Court, disbursement whereof was made subject to the final outcome of the verdict(s) pronounced by the competent Court of law. In the aforesaid background, Court ordered the matter to be listed on 17.3.2017, and, till then, interim order made in favour of the petitioners was continued. On 17.3.2017, petitioners sought modification of order dated 17.2.2017 passed by a Coordinate Bench of this Court, but since no formal application for modification was filed, matter was ordered to be listed before appropriate Bench. On 21.3.2017, matter came to be listed before this Court, on which date, petitioners moved application under Section 482 CrPC for modification of order dated 17.2.2017, whereby petitioners were directed to deposit amount as referred above, within three weeks.

Mr. Ashwani Pathak, learned Senior Advocate, duly assisted by Mr. V.S. Rathour, Advocate, while inviting attention to aforesaid application stated that condition as imposed in Order dated 17.2.2017, is very harsh and, by no stretch of imagination, petitioners could be directed to deposit the entire amount, because, mere deposit, if any, of same by the petitioners would amount to admission on their part. Mr. Pathak, further stated that petitioners are not in a position to fulfill the condition imposed by this Court and as such order dated 17.2.2017, may be suitably modified by removing condition of depositing amount by the petitioners. Mr. Pathak also stated that, compliance, if any, of the condition as imposed in order dated 17.2.2017, shall cause undue pressure on the petitioners, who are already in financial crisis. He further stated that since matter is to be finally adjudicated by competent court of law, on the basis of material adduced on record by the investigating agency, it shall not be in the interests of justice if petitioners are put to unreasonable condition of depositing disputed amount, as it would adversely affect their rights before the competent court of law, which may ultimately decide the trial pending against them. He also placed reliance upon judgment of the Apex Court in Sumit Mehta v. State (NCT of Delhi) reported in (2013) 15 SCC 570 and another judgment of Apex Court in Rakesh Baban Borhade v. State of Maharashtra reported in (2015) 2 SCC 313. Lastly, Mr. Pathak contended that, if petitioners are directed to deposit some reasonable amount to show their bona fide, they shall deposit the same within reasonable period and shall also join the investigation, as and when called by the investigating agency.

Mr. P.M. Negi, learned Additional Advocate General, while opposing aforesaid prayer of the learned counsel representing the petitioners, invited attention of this Court to the status report filed by the investigating agency to demonstrate that petitioners have misappropriated an amount of Rs.21,42,000/-, belonging to the complainant, who is admittedly an old lady. Mr. Negi, while referring to the undertaking allegedly given by the petitioners before the police stated that the petitioners had made a commitment to make full payment of the amount in question within stipulated time. But no steps, whatsoever, were taken by them to honour their commitment made before the investigating agency, which certainly points towards their conduct. Apart from above, Mr. Negi has stated that order dated 17.2.2017, wherein interim bail was granted to the petitioners, was not complied by the petitioners and as such petitions at hand deserve outright dismissal. Mr. Negi also contended that the petitioners have failed to join the investigation despite repeated reminders sent to them and till date they have failed to make available relevant documents/information, which may be necessary for proper investigation of the case and, as such, prayed for dismissal of the bail petitions.

I have heard the parties and gone through the record carefully.

After bestowing my thoughtful consideration to the record made available by the investigating agency and submissions having been made by the learned counsel representing the parties, in normal circumstances, this Court would not have modified the condition as imposed vide order dated 17.2.2017, but, keeping in view of the fact that entire disputed amount comes to Rs.21,42,000/-, as emerges from record, and in case petitioners are made to deposit the same, during the pendency of trial, it may certainly affect their defence/rights before the trial Court, which may otherwise try them for the offences, with which they are charged. True it is, some considerable amount is required to be deposited by the petitioners to show their bonafides but, certainly, this Court, while considering their plea for grant of interim bail, can not put petitioners to undue hardships. Averments as contained in the application for modification filed by petitioners, suggests that they are in financial crisis and it may not be possible for them to arrange for such a huge amount that too within time as stipulated by this Court.

It is well settled law that while exercising powers under Section 438 CrPC, Court is duty bound to strike balance between individual rights and personal freedom and right of investigation of the police. While granting relief under Section 438 CrPC, appropriate conditions can be imposed under Section 438(2) CrPC to ensure uninterrupted investigation because very object of putting such conditions is to avoid possibility of a person hampering investigation. The Apex Court has repeatedly held that discretion of Court while imposing conditions must be exercised with utmost restrain and Courts are duty bound to impose appropriate conditions as provided under Section 438 (2) CrPC. The Apex Court, while interpreting words, "any condition", has held that condition should be reasonable but not onerous, having regard to the facts of the case, because the object of imposing such a condition is to ensure uninterrupted and fair investigation of trial. Hon''ble Apex Court has gone one step ahead saying that no condition, which defeats the very object, is permissible and Courts should exercise this discretion with utmost precaution.

The Hon''ble Apex Court, in Sumit Mehta v. State (NCT of Delhi) reported in (2013) 15 SCC 570, has held as under:

"11. 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. For the same, while granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2) so as to ensure an uninterrupted investigation. The object of putting such conditions should be to avoid the possibility of the person hampering the investigation. Thus, any condition, which has no reference to the fairness or propriety of the investigation or trial, cannot be countenanced as permissible under the law. So, the discretion of the Court while imposing conditions must be exercised with utmost restraint.

The law presumes an accused to be innocent till his guilt is proved. As a presumably innocent person, he is entitled to all the fundamental rights including the right to liberty guaranteed under Article 21 of the Constitution.

We also clarify that while granting anticipatory bail, the Courts are expected to consider and keep in mind the nature and gravity of accusation, antecedents of the applicant, namely, about his previous involvement in such offence and the possibility of the applicant to flee from justice. It is also the duty of the Court to ascertain whether accusation has been made with the object of injuring or humiliating him by having him so arrested. It is needless to mention that the Courts are duty bound to impose appropriate conditions as provided under sub-section (2) of Section 438 of the Code.

Thus, in the case on hand, fixed deposit of Rs. 1,00,00,000/- for a period of six months in the name of the complainant and to keep the FDR with the investigating officer as a condition precedent for grant of anticipatory bail is evidently onerous and unreasonable. It must be remembered that the Court has not even come to the conclusion whether the allegations made are true or not which can only be ascertained after completion of trial. Certainly, in no words are we suggesting that the power to impose a condition of this nature is totally excluded, even in cases of cheating, electricity pilferage, white-collar crimes or chit fund scams etc.

The words "any condition" used in the provision should not be regarded as conferring absolute power on a Court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed."

The Hon''ble Apex Court, in Rakesh Baban Borhade v. State of Maharashtra reported in (2015) 2 SCC 313, has further held as under:

"7. Sub-section (1) of Section 438 has been amended by Cr.P.C. (Amendment) Act 2005 (Act 25 of 2005), by which old sub-section (1) has been substituted by new sub-sections (1), (1A) and (1B). The guiding factors for grant of anticipatory bail have been mentioned in sub-section (1) of Section 438 itself. The Court would grant or refuse anticipatory bail after taking into consideration the following factors, namely:-

(1) (i) the nature and gravity of the accusation;

(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;

(iii) the possibility of the applicant to flee from justice;

and

(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested.

Anticipatory bail is not to be granted as a matter of rule, but should be granted only when a special case is made out and the Court is convinced that the accused would not misuse his liberty. After analysing various judgments and guidelines in Siddharam Satlingappa Mhetre vs. State of Maharashtra and Ors., (2011) 1 SCC 694, this Court has enumerated the parameters that can be taken into consideration by the courts while dealing with the anticipatory bail.

In the light of the parameters laid down in Siddharam Satlingappa Mhetre''s case, we have considered rival contentions of the parties. The dispute between the parties revolves around MOU dated 21.12.2005 and the previous MOU dated 3.2.2005. The dispute is purely a business transaction based on the said MOUs. According to the appellant- accused, he sold the land belonging to his father in Survey No.75/18 to M/s. Siddhivinayak Enterprises by sale deed dated 31.12.2007 as legal representative of his father and there is no illegality involved in it. Whether the appellant-accused has sold the property to M/s. Siddhivinayak Enterprises in his capacity as the legal heir of his father or as a representative of the company and whether there was any dishonest intention to cheat the complainant remains to be seen only when the parties adduce oral and documentary evidence.

When the Special Leave Petitions came up for hearing, by order dated 9.5.2014 interim protection from arrest was granted to the appellantaccused and without prejudice to the contentions, the appellant was directed to deposit a sum of rupees one crore in the Registry of the Supreme Court and in compliance of the said order, the appellant has deposited rupees one crore. Since the transaction is in the nature of commercial transaction and since the appellant has also shown his bonafide by depositing rupees one crore, pending further investigation, in our view, anticipatory bail could be granted to the appellant."

Consequently, in view of above, order dated 17.2.2017 deserves to be modified to the extent that the petitioners shall deposit a lump sum of Rs.5.00 Lakh, within a period of two weeks to show their bonafides. Petitioners; Raj Kumar and Abha Sharma, who are present in the Court, undertake to deposit aforesaid amount within two weeks from today and also to make themselves available for investigation as and when called by the investigating agency. It has been made clear to the petitioners present in the Court, in person and also through their counsel that in case amount, as stated above, is not deposited within the stipulated period or they fail to appear before the investigating agency as and when called by it, bail granted in their favour shall stand vacated automatically, without further reference to the Court. Needless to say, bail granted to the petitioners is subject to following conditions: (a) They shall make themselves available for the purpose of interrogation, if so required and 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;

(b) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and

(d) They shall not leave the territory of India without the prior permission of the Court.

However, petitioners are ordered to join the investigation as and when required by the Investigating Officer, on the basis of a written Hukamnama. It is made clear that on single default of non-compliance with the written Hukamnama would entail immediate cancellation of bail at the instance of State.

It is clarified that if the petitioners misuse liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of these petitions alone. The petitions are disposed of.

CrMP No. 257/2017 in CrMP(M) No. 77/2017

CrMP No. 258/2017 in CrMP(M) No. 75/2017

CrMP No. 259/2017 in CrMP(M) No. 76/2017

In view of the observations made in the paras above, these applications are also disposed of. Copy dasti.