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Himachal Pradesh High Court · body

2015 DIGILAW 1113 (HP)

Anand Prakash Massand v. State of H. P.

2015-08-14

P.S.RANA

body2015
ORDER P.S. Rana, J. Present bail application is filed under Section 438 of the Code of Criminal Procedure 1973 for grant of anticipatory bail in connection with FIR No.36 of 2015 dated 25.6.2015 registered under Section 406 IPC at P.S. Kasauli District Solan (H.P.) 2. It is pleaded that petitioner is working as Chief Manager in Union Bank of India New Delhi and Smt. Usha is real sister of complainant Raj Kishore Gupta son of late Shri D.R. Gupta. It is pleaded that complainant who is an influenced person wanted to grab the entire ancestral property. It is pleaded that Smt. Usha Devi demanded her share in the ancestral property. It is pleaded that complainant Raj Kishore Gupta is brother-in-law of petitioner. It is further pleaded that Raj Kishore Gupta complainant did not care his mother during her life time and harassed his mother during her life time. It is pleaded that Raj Kishore Gupta complainant filed false criminal complaint against petitioner and his wife Usha Devi that accused persons took 1½ Kg. gold and Rs. 16 lacs (Rupees sixteen lacs only) cash and other articles from the house. It is pleaded that petitioner is innocent and petitioner did not commit any criminal offence. It is pleaded that petitioner will abide by all terms and conditions imposed by the Court. Prayer for acceptance of anticipatory bail application sought. 3. Per contra police report filed. As per police report on dated 25.6.2015 complainant Raj Kishore Gupta son of late Shri D.R. Gupta resident of village Shaktighat P.O. Jubbar Tehsil Kasauli District Solan came in police station and presented criminal complaint against accused persons. There is further recital in police report that father of complainant died many years ago and complainant has one sister namely Usha co-accused No.2. There is recital in police report that father of complainant was posted in education department and retired as Principal. There is recital in police report that Usha co-accused No. 2 is residing at Delhi. There is recital in police report that complainant Raj Kishore Gupta has business at Chandigarh and he is residing in Chandigarh along with his family members. There is further recital in police report that after investigation it was observed that father of complainant had died many years ago and complainant has one sister namely co-accused No. 2 Usha. There is recital in police report that complainant Raj Kishore Gupta has business at Chandigarh and he is residing in Chandigarh along with his family members. There is further recital in police report that after investigation it was observed that father of complainant had died many years ago and complainant has one sister namely co-accused No. 2 Usha. There is further recital in police report that mother of complainant died on dated 5.4.2015. There is further recital in police report that on dated 18.7.2015 complainant and accused persons were talking about division of ancestral property and when complainant went to his another residential room for some time in the meanwhile both accused persons namely Anand and Usha took golden jewellary and FDRs in vehicle No. PB-10CU-9379. There is recital in police report that complainant tried to call back the accused persons but accused persons did not response. There is recital in police report that golden articles and FDRs are still to be recovered from accused persons. Prayer for dismissal of anticipatory bail application sought. 4. Court heard learned Advocate appearing on behalf of the petitioner and learned Additional Advocate General appearing on behalf of the non-petitioner and also perused the record. 5. Following points arise for determination in this bail application:- 1. Whether anticipatory bail application filed under Section 438 Cr.P.C. by petitioner is liable to be accepted as mentioned in memorandum of grounds of bail application? 2. Final Order. Findings on Point No.1 6. Submission of learned Advocate appearing on behalf of petitioner that petitioner is innocent and petitioner did not commit any criminal offence as mentioned in FIR cannot be decided at this stage. Same fact will be decided when case shall be disposed of on merits after giving due opportunity to both the parties to lead evidence in support of their case. 7. Another submission of learned Advocate appearing on behalf of the petitioner that any condition imposed by Court will be binding upon the petitioner and on this ground anticipatory bail application be allowed is accepted for the reasons hereinafter mentioned. At the time of granting bail following factors are considered. 7. Another submission of learned Advocate appearing on behalf of the petitioner that any condition imposed by Court will be binding upon the petitioner and on this ground anticipatory bail application be allowed is accepted for the reasons hereinafter mentioned. At the time of granting bail following factors are considered. (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State (Delhi Administration). Also see AIR 1962 SC 253 titled The State Vs. Captain Jagjit Singh. It was held in case reported in 2012 Cri. L.J. 702 Apex Court DB 702, titled Sanjay Chandra vs. Central Bureau of Investigation that object of bail is to secure the appearance of the accused person at his trial. It was held that grant of bail is the rule and committal to jail is exceptional. It was held that refusal of bail is a restriction on personal liberty of individual guaranteed under Article 21 of the Constitution. It is prima facie proved on record that complainant Raj Kishore and accused Usha are real brother and sister. It is also prima facie proved on record that co-accused No. 1 Anand Massand is brother-in-law of complainant Raj Kishore. It is prima facie proved on record that dispute inter se the parties is relating to division of ancestral property. In view of the fact that dispute inter se the complainant and accused is a family dispute relating to ancestral property Court is of the opinion that it is expedient in the ends of justice to release the petitioner on anticipatory bail at this stage. Court is of the opinion that if petitioner is released on anticipatory bail at this stage then interest of State and general public will not be adversely affected. Court is of the opinion t hat if petitioner is released on bail at this stage then investigation of case will not be adversely affected. 8. Court is of the opinion that if petitioner is released on anticipatory bail at this stage then interest of State and general public will not be adversely affected. Court is of the opinion t hat if petitioner is released on bail at this stage then investigation of case will not be adversely affected. 8. Submission of learned Additional Advocate General appearing on behalf of State that still jewellary and FDR are to be recovered from accused persons and on this ground anticipatory bail application be dismissed is rejected being devoid of any force for the reasons hereinafter mentioned. It is well settled law that bail cannot be denied to accused persons solely on the ground that some recovery is to be effected from accused (See 1982 SLJ (HP) 415 titled Nirmal Walia vs. State) 9. Submission of learned Additional Advocate General appearing on behalf of non-petitioner that if anticipatory bail is granted to petitioner then petitioner will induce, threat and influence the prosecution witnesses and on this ground bail application be declined is rejected being devoid of any force for the reasons hereinafter mentioned. Court is of the opinion that conditional anticipatory bail will be granted to petitioner and if petitioner will flout the terms and conditions of anticipatory bail order then prosecution will be at liberty to file application for cancellation of bail strictly in accordance with law. In view of above stated facts point No.1 is answered in affirmative. Point No.2 (Final Order) 10. In view of my findings on point No.1 anticipatory bail application filed by petitioner under Section 438 Cr.P.C. is allowed and interim order dated 23.7.2015 is made absolute. Observations made in this order will not effect the merits of case in any manner and will strictly confine for the disposal of bail application filed under Section 438 of Code of Criminal Procedure 1973. All pending application(s) if any also disposed of. Bail petition filed under Section 438 of Code of Criminal Procedure stands disposed of.