Anticipatory Bail—Application ought not to have been dismissed for non-prosecution – At the best, it should have been decided on merit

Mr. Amit Rawal J. (Oral):- Notice of motion.

2. Mr. I.P.S.Doabia, Additional Advocate General, Punjab acceptsnotice on behalf of the respondent-State.

3. Contention of the petitioner in the present petition is thatpetitioner-Vishvajeet Sharma being Director of the Company-M/s TeleoneConsumers Product Private Limited has falsely been implicated in FIRNo.08/2017 dated 13.06.2017 under Sections 420, 120-B IPC and 66-D I.T.Act, registered with P.S Punjab State Cyber Crime, S.A.S.Nagar, Punjab atthe instance of Manish Grover, wherein, it has been alleged that a productnamely ‘Divya Kit’ which was developed by the complainant being sold inthe market through various advertisements, whereas, the petitioner-accusedbeing Director of the Company, ibid, is selling the same product by takingthe screen shots of the websites and helpline phone numbers mentioned onthe website of the complainant.

4. Apprehending arrest at the instance of the police, the petitionerfiled anticipatory bail application before the concerned Court which wastaken up on 12.12.2017 (Annexure P-2) and following order was passed:-

“Vishvajeet Sharma Vs. State (BA-2096-17)

Present: Sh. Anil Sharma, Advocate, counsel forpetitioner/applicant.

Sh. S.S.Sahota, Addl.PP for State-respondent.

Police record produced by SI Sandeep Kumar. As perallegations contained in the FIR, the complainant haddeveloped a product, namely, ‘Divya Kit’, which was being soldby him. The petitioner allegedly sold the product manufacturedand registered by the complainant by mentioning their phonenumbers on the website.

It is submitted by ld. Counsel for the petitioner that theproduct which is being sold by the petitioner is no ‘Divya Kit’but it is ‘Divya Jiwan Kit’. No cheating has been committed bythe petitioner. He is ready to join the investigation, so he maybe admitted to pre-arrest bail.

On the other hand, it is submitted by ld. Addl. PPassisted by Sh. Amarpreet Singh, Advocate that the petitioner isselling the product of complainant and not some otherproduct. He has caused financial loss as well as loss to thegoodwill of the complainant. The custodial interrogation of thepetitioner is required for further investigation of the case, assuch, present bail application may be dismissed.

Heard. File perused.

Keeping in view the facts and circumstances to this case,petitioner is directed to join investigation on 15.12.2017 at10.00 a.m. In the event of his arrest, he shall be admitted tointerim bail by the I.O to his satisfaction and subject to thefulfillment of the provisions of Section 438(2) Cr.P.C. Policerecord be produced on 18.12.2017.

(Jaswinder Singh)

ASJ/Mohali/12.12.2017

Date of order 12.12.2017

Neeraj”

5. Though the reference has also been made to Registration ofTrade Mark under the Trade Marks Act, 1999 (Annexure P-3). However,on the adjourned date, the matter was taken up by other Additional SessionsJudge, namely, Sh. Puneet Mohan Sharma and the factum of which was notin the knowledge of the petitioner nor his newly engaged counsel, thusresulted into dismissed-in-default of the anticipatory bail application on22.12.2017. He submits that the petitioner has been prevented from puttingacross his case as pleaded in the bail application and other grounds to beargued at an appropriate stage and time. He further submits that he may begiven an opportunity of hearing before the competent Court, in accordancewith law.

6. Mr. I.P.S.Doabia, learned Additional Advocate General, Punjabsubmits that the petitioner is at liberty to move an application for recallingof the order dated 22.12.2017, whereas, counsel for the petitioner hasreferred to the provisions of Section 362 of Code of Criminal Procedurewhich prohibit the Judge from recalling of the order.

7. In rebuttal, learned counsel for the petitioner also submits thatthe bail application cannot be dismissed in default, at the best, the mattercould have been decided after hearing the public prosecutor.

8. I have heard learned counsel for the parties and appra