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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
SANDEEP SHARMA, J.
Rajiv Sharma, S/o Sh. Pyare lal - Appellant
Versus
The State of Himachal Pradesh – Respondent
Criminal misc. Petition (MAIN) No.1360 of 2021
Decided on : 01-09-2021
Criminal Procedural Code, 1973 - Section 439 (2), 482 – Savings of inherent powers of High Court – Petitioner/complainant met respondent No.2, through one who happens to be his co-brother for purchasing some plot - Respondent No.2 allegedly told complainant that government has acquired land of farmers and same shall be subsequently given as a plot and since he has acquaintance with certain farmers, he will get one plot sold to petitioner-complainant - Allegedly, petitioner complainant on askance of respondent No.2, gave Rs. 66.00 lac to him for purchase of plot - Sum was deposited in bank account of respondent No.2, whereas was allegedly paid as cash - Since despite having received aforesaid amount, respondent No.2-accused failed to get plot allotted/transferred in favour of petitioner-complainant, he filed FIR detailed herein above - Apprehending his arrest, respondent accused filed an application under Section 438 CrPC in court of Additional Sessions Judge, praying therein for interim bail – Held, in case at hand though there is an allegation of misappropriation of 66 lac by respondent, but as has been taken note here in above, there is no evidence worth credence available on record that sum of Rs. 66.00 lac was paid by petitioner-complainant to respondent for purchase of plot - Had aforesaid sum been paid for purchase of plot by petitioner to respondent, definitely there would have been some agreement, but in case at hand, neither there is any agreement to sell nor there is a receipt if any, issued qua payment of 66 lac by petitioner complaint to respondent No.2 - Sum of Rs. 41 lac received in bank account of respondent has been duly explained by him by stating that aforesaid amount was paid by him to petitioner complainant with a view to save him from criminal proceedings initiated at behest of lady -Whether respondent No.2 committed an economic offence is a question, which needs to be decided on basis of evidence collected on record by prosecution and mere use of expression “economic offence” cannot be made basis to deny prayer made on behalf of respondent for grant of anticipatory bail, especially in given facts and circumstances of the case – Petition dismissed.
ORDER :
1. By way of instant application filed under Section 439 (2) Cr.PC., read with Section 482 Cr.PC., prayer has been made on behalf of the petitioner-complainant for cancellation of anticipatory bail granted by the learned Additional Sessions Judge, Nalagarh, District Solan, H.P., in case No. 44 of 2020, titled Chhotu Ram v. State of HP in case FIR No. 300 of 2020, dated 6.12.2020, registered at PS Baddi, District Solan, under Sections 406, 420 and 506 of IPC.
2. Briefly stated facts, as emerge from the record are that, petitioner-complainant met respondent No.2-Chhotu Ram, through one Tarsem Lal, who happens to be his co-brother for purchasing some plot at Panchkula Haryana. Respondent No.2 allegedly told the complainant that government has acquired land of farmers and same shall be subsequently given as a plot and since he has acquaintance with certain farmers, he will get one plot sold to the petitioner-complainant. Allegedly, petitioner complainant on the askance of the respondent No.2, gave Rs. 66.00 lac to him through Sh. Tarsem Lal for the purchase of plot. Sum of Rs. 41.00 lac was deposited in the bank account of respondent No.2 on 17.6.2013, whereas Rs. 25.00 lac was allegedly paid as cash at Baddi. Since despite having received aforesaid amount, respondent No.2-accused failed to get the plot allotted/transferred in favour of the petitioner-complainant, he filed the FIR detailed herein above. Apprehending his arrest, respondent accused filed an application under Section 438 CrPC in the court of learned Additional Sessions Judge, Nalagarh, District Solan, praying therein for interim bail.
3. Learned court below vide order dated 7.4.2021, enlarged the respondent-accused on bail in the event of his arrest in the FIR detailed herein above subject to his joining investigation as and when required by the arresting officer. On 19.5.2021, court below after having taken note of the status report as well as record made available by the investigating agency made the order dated 7.4.2021, absolute, subject to following conditions
2. That he/she shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so s to dissuade him from disclosing such fats to the court or to ay Police Officer.
3. That he/she shall not leave India without previous permission of the court.
4. Being aggrieved and dis-satisfied with the aforesaid order granting bail in favour of respondent No.2, petitioner-complainant has approached this Court in the instant proceedings filed under Section 439 (2) Cr.PC for the cancellation of the bail.
5. Pursuant to notices issued by this Court, respondents have filed reply to the petition. Specific objection with regard to maintainability of the petition has been taken by both the respondents. Learned Additional Advocate General, while referring to the impugned order granting anticipatory bail vehemently submits that since there is nothing on record suggestive of the fact that after grant of anticipatory bail, respondent accused has jumped over the conditions imposed by the court below while granting bail, instant application for cancellation of bail filed under Section 439(2) Cr.Pc is not maintainable, he further contends that if the petitioner intends to lay challenge to the aforesaid order granting bail on merits, appropriate remedy under law is to file criminal revision petition under Section 397 Cr.PC, but not definitely, under Section 439 (2) Cr.PC.
6. Mr. J.L. Bhardwaj, while making this Court peruse provisions contained under Section 439 (2) Cr.PC contends that application for cancellation of bail can be filed directly to the court of learned Sessions Judge as well as High Court under Section 439 (2) and it is not necessary to file criminal revision petition under Section 397 Cr.PC., especially when impugned order granting bail is perverse on the face of it. Mr. Bhar
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