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Himachal Pradesh High Court · body

2004 DIGILAW 36 (HP)

RAVI DUTT SHARMA v. STATE OF H. P.

2004-03-08

M.R.VERMA

body2004
JUDGMENT : M.R. Verma, J. (Oral) : This application under Section 438 of the Code of Criminal Procedure has been preferred by the petitioner-accused (hereinafter referred to as the accused) for grant of anticipatory bail to him in case FIR No. 137 of 2003 dated 3.9.2003 under Sections 406 and 420 of the Indian Penal Code registered at Police Station Barsar. 2. The prosecution case against the accused is that he assured complainant Dinesh Kumar and others in July, 2001 to get them admission in Agra University for B.Ed, course as he had been getting such admission for the aspirants. He charged a further sum of Rs. 60,000/- from each of the aspirants and took Dinesh Kumar and others to Agra where he charged a further sum of Rs. 10,000/- from each of the aspirants for admission on the understanding that in the event of his failure to get them admitted he would return the money charged by him. Leaving the aspirants at Agra, the accused left to some unknown place. The cheated aspirants including the complainant aforesaid visited the house of the accused repeatedly, but he was not available. The matter was finally reported to the police and the investigation followed. On investigation, it has been found that the accused had cheated so many aspirants to get them admitted in the B.Ed, course and had thus received a sum of Rs. 3,50,000/- from the said aspirants. It was also found that in case FIR No. 58 of 2002 dated 24.4.2002 under Sections 406 and 420 of the Indian Penal Code, a chargesheet had already been submitted against the accused for commission of similar offences. The accused has preferred the present petition on the grounds that he is completely innocent and is being implicated in the case falsely by some interested persons with a view to harass him. 3. I have heard the learned counsel for the accused and learned Deputy Advocate General for the State and have also gone through the police report and the records. 4. It was contended by the learned counsel for the accused that the real culprit in the case is some one else on whom the police could not lay hands and the accused who is utterly innocent has been involved in this case and is being harassed without any rhyme and reason. 5. 4. It was contended by the learned counsel for the accused that the real culprit in the case is some one else on whom the police could not lay hands and the accused who is utterly innocent has been involved in this case and is being harassed without any rhyme and reason. 5. A perusal of the record prima facie shows the involvement of the accused in the commission of the offences alleged to have been committed by him whereby he had cheated a number of aspirants and has amassed huge amounts. 6. What adds to the injury is that he is already being prosecuted in a case for the commission of offences punishable under Sections 406 and 420 of the Indian Penal Code. The offences committed by the accused are not only of grave nature but also involves moral turpitude. 7. It may be pointed out that the purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail. However, before granting anticipatory bail the court must be satisfied that the arrest and detention of the bail-petitioner will not be in furtherance of the justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring person apprehending the arrest. Such a satisfaction has to be derived by the court form the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner. Thus, the provisions of Section 438 of the Code of Criminal Procedure cannot be invoked mechanically but the court has to exercise judicial discretion by striking a balance between the liberty of the petitioner and operation of the criminal justice system. A proper exercise of judicial discretion invariably has to take care of the evil consequences of improper exercise of such a discretion. In case the public interest requires the detention of the accused in custody for investigation or saving the evidence form being tampered, anticipatory bail should not be granted. 8. In the case in hand as already stated the involvement of the accused in the commission of offences is prima facie made out The case against him does not appear to be engineered one. 8. In the case in hand as already stated the involvement of the accused in the commission of offences is prima facie made out The case against him does not appear to be engineered one. On the contrary he is being prosecuted in another case for having committed similar offences as in this case. There is no assurance that if released on bail the accused will not again indulge in the commission of similar offences or will not tamper with the prosecution evidence. There is specific allegation in the FIR that when the cheated persons demanded their money back from the accused, he threatened them saying that he is a person of M.L.A. Baldev of B.J.P. and in case they dared to demand the money from him again, he could get any thing done. It appears from this allegation that the accused is capable of threatening and criminally intimidating the witnesses and thus tamper with the prosecution evidence. Therefore, in view of the above facts and circumstances the discretion under Section 438 of the Code of Criminal Procedure cannot be exercised in favour of the accused. 9. As a result, this application merits dismissal and is accordingly dismissed.