Research › Search › Judgment

Himachal Pradesh High Court · body

2019 DIGILAW 1794 (HP)

Sajid Hossain v. State of Himachal Pradesh

2019-11-28

CHANDER BHUSAN BAROWALIA

body2019
JUDGMENT : Chander Bhusan Barowalia, J. The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 260 of 2017, dated 22.10.2017, under Section 420 IPC, registered in Police Station Sadar Chamba, District Chamba, H.P. 2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. No fruitful purpose will be served by keeping him behind the bars for an unlimited period, so he be released on bail. 3. Police report stands filed. As per the prosecution story, on 22.10.2017 Shri Mukesh Kumar (complainant) made a written application to the police, wherein he stated that in the year 2012 he completed Diploma in Mechanical Engineering. He has further stated that Sachin Thakur (coaccused), who works in Merchant Navy, Kolkata, is brother in his relation. The complainant had a word with Shri Sachin Thakur qua his employment, who informed him that the petitioner, who also works in Merchant Navy, does the work of getting visa clearance. The petitioner telephonically informed the complainant that he can manage work visa in Australia for him for three years and total expenses would be Rs. 7,10,000/-. The complainant sent his relevant documents to the petitioner and as the complainant did not know the petitioner he transferred in total 3,20,000/-, on different dates, in the account of Sachin Thakur, who informed that he paid the said amount to the petitioner. In November, 2015, the petitioner telephoned the complainant and asked to send Rs. 3,90,000/- in his account, so the complainant transferred money in his account on different dates. In total the complainant transferred Rs. 7,10,000/-, then he was told to wait for 15 days for his visa. Thereafter, the petitioner switched off his mobile, thus the petitioner, on the pretext of getting work visa of Australia for the complainant, cheated him. Upon the complaint of the complainant, police registered a case and the investigation ensued. Police procured the relevant bank records. The petitioner, in order to evade his arrest, absconded and on 25.04.2018 he joined the investigation. The petitioner admitted that during the year 2014 Sachin Thakur was his colleague. Upon the complaint of the complainant, police registered a case and the investigation ensued. Police procured the relevant bank records. The petitioner, in order to evade his arrest, absconded and on 25.04.2018 he joined the investigation. The petitioner admitted that during the year 2014 Sachin Thakur was his colleague. He also admitted that in order to get work visa for the complainant, Sachin Thakur had a word with him. The petitioner, in order to get work visa for the complainant paid Rs. 6,50,000/- to one Suman Munna (co-accused). The petitioner denied that he was paid Rs. 7,10,000/- and admitted that he was only paid Rs. 6,50,000. Police extensively searched Suman Munna, but he could not be found, but he telephonically informed the petitioner that he would return the passport of the complainant and money to him. Police recovered the passport of the complainant from the house of Suman Munna. Suman Munna is still absconding and he sought time for returning Rs. 6,00,000/- to the petitioner. As per the police, Suman Munna is evading his arrest and he is seeking time till March to return the money. On 13.10.2019 the petitioner was arrested and despite repeated endeavors accused Suman Munna could not be arrested. Lastly, it is prayed that the bail application of the petitioner be dismissed, as the petitioner has committed a serious offence. In case the petitioner is enlarged on bail, at this stage, he may tamper with the prosecution evidence and may also flee from justice, as he is resident of West Bengal, so the bail application of the petitioner be dismissed. 4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully. 5. The learned Counsel for the petitioner has argued that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period. The petitioner is joining and co-operating in the investigation and he has also returned Rs. 1,00,000/- to the complainant, so the petition be allowed and the petitioner be enlarged on bail. He has further argued that no fruitful purpose will be served by keeping the petitioner behind the bars for an unlimited period. The petitioner is joining and co-operating in the investigation and he has also returned Rs. 1,00,000/- to the complainant, so the petition be allowed and the petitioner be enlarged on bail. Conversely, learned Additional Advocate General has argued that the petitioner has committed a serious crime and in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice, as he is resident of West Bengal, so it is prayed that the bail application of the petitioner may be dismissed. 6. In rebuttal the learned Counsel for the petitioner has argued that the petitioner cannot be kept behind the bars for an unlimited period, especially when he is joining and co-operating in the investigation and also returned Rs. 1,00,000/- to the complainant. He has further argued that that keeping in view the overall material, which has come on record, and also the conduct of the petitioner, the application be allowed and the petitioner be enlarged on bail. 7. At this stage, considering the conduct of the petitioner, which reflects that he is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, the fact that he has returned Rs. 1,00,000/- to the complainant, he is joining and co-operating in the investigation, the manner in which the offence is alleged to have been committed by the petitioner, considering the overall material, which has come on record, and without discussing the same at this stage, the fact that the petitioner is ready and willing to abide by the terms and conditions of bail, in case so granted, and also the fact that the petitioner cannot be kept behind the bars for an unlimited period, so this Court finds that the present is a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the petition is allowed and it is ordered that the petitioner, who has been arrested by the police, in case FIR No. 260 of 2017, dated 22.10.2017, under Section 420 IPC, registered in Police Station Sadar Chamba, District Chamba, H.P., shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs.50,000/- (rupees fifty thousand) with one surety in the like amount to the satisfaction of the learned Trial Court. The bail is granted subject to the following conditions: (i) That the petitioner will appear before the learned Trial Court/Police/authorities as and when required. (ii) That the petitioner will not leave India without prior permission of the Court. (iii) That the petitioner will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Investigating Officer or Court. 8. In view of the above, the petition is disposed of.