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2020 DIGILAW 393 (HP)

Anil Kumar v. State of Himachal Pradesh

2020-07-03

CHANDER BHUSAN BAROWALIA

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JUDGMENT Chander Bhusan Barowalia, J. - The matters are taken up through video conference. 2. The present bail applications have been maintained by the petitioners under Section 438 of the Code of Criminal Procedure seeking their release, in the event of their arrest, in case FIR No. 91 of 2020, dated 17.05.2020, under Sections 409, 120 IPC and Sections 4 and 7 of The Himachal Pradesh Prevention of Specific Corrupt Practices Act, 1983, registered in Police Station Jwalamukhi, District Kangra, Himachal Pradesh 3. As per the averments made in the petitions the petitioners are innocent and have been falsely implicated in the present case. They are residents of the place and 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 sending them behind the bars, so they be released on bail. 4. Police reports stand filed. The prosecution story, on 17.05.2020 police were informed that government cement is being used for private construction. Police were further informed that in case the house of one Sudesh Kumari is raided, government cement, which is illegally used for private construction, could be recovered. Police associated independent witnesses and raided the premises of Sudesh Kumari and recovered 187 bags of cement and these bags have common marking, i.e., "ACC Not for Retail Sale/Not for resail (only HP Govt Supply). It was unearthed that Sudesh Kumari had given a contract to Anil (one of the petitioners herein) and she had paid Rs. 1,50,000/- to him. It has also come in the investigation that brother-in-law of Sudesh Kumari, Sanjay Kumar (other petitioner herein) was instrumental in granting the contract to petitioner Anil. During the night of 14/15.05.2020, on being asked by petitioner Sanjay Kumar, petitioner Anil, in Tractor No. HP36A-8160, transported cement, meant for government supply, and stacked the same in two different locations. Some bags of cement were kept in a tin shed near the under-construction house of Sudesh Kumari and rest of the cement was stacked in a room of Shiv Mandir, Purtiyala. On 01.06.2020 police recovered 115 bags of cement meant for government supply from the room of the temple. As per the police, petitioner Sanjay Kumar requested the Temple President for stacking the cement in a room of temple and assured to lift the same on 17.05.2020 when lintel work of Sudesh Kumari would be completed. On 01.06.2020 police recovered 115 bags of cement meant for government supply from the room of the temple. As per the police, petitioner Sanjay Kumar requested the Temple President for stacking the cement in a room of temple and assured to lift the same on 17.05.2020 when lintel work of Sudesh Kumari would be completed. Petitioner Anil is Government Contractor and record reveals that on 11.03.2020 he had received consignment of 240 bags of government cement for some government work. It has also come in the investigation that petitioner Anil did not use the said cement in any government work allotted to him and instead he used the same in laying the lintel of Sudesh Kumari. Police registered a case under apt Sections and further investigation is underway. It is yet to be ascertained that from where petitioner Anil managed 75 more bags of government cement. Both the petitioners are joining and co-operating in the investigation and report from RFSL, Mandi, is awaited. Lastly, it is prayed that the bail applications of the petitioners be dismissed, as the petitioners were found involved in a serious crime. There is possibility that in case at this stage, if the petitioners are enlarged on bail, they may flee from justice. The petitioners can also tamper with the prosecution evidence, so their applications be dismissed. 5. I have heard the learned Counsel/Senior Counsel for the respective petitioners, learned Additional Advocate General for the State and gone through the records, including the police reports, carefully. 6. The learned Counsel/Senior Counsel for the respective petitioners argued that the petitioners have been falsely implicated in the present case. They have further argued that the petitioners are residents of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. They have further argued that no fruitful purpose will be served by sending them behind the bars, as they are joining and co-operating in the investigation, nothing is to be recovered from them. They have further argued that the custody of the petitioners is not at all required by the police for investigation, so the bail application be allowed. They have further argued that no fruitful purpose will be served by sending them behind the bars, as they are joining and co-operating in the investigation, nothing is to be recovered from them. They have further argued that the custody of the petitioners is not at all required by the police for investigation, so the bail application be allowed. Conversely, the learned Additional Advocate General has argued that the petitioners were found involved in a serious offence, so at this stage, in case they are enlarged on bail, they may tamper with the prosecution evidence and may also flee from justice. They have prayed that the bail applications of the petitioner be dismissed. 7. In rebuttal the learned Counsel/Senior Counsel for the petitioners argued that the petitioners are neither in a position to flee from justice nor in a position to tamper with the prosecution evidence, as they are permanent residents of the place. Their custodial interrogation is not at all required by the police, as they are joining and co-operating in the investigation, nothing remains to be recovered at their instance, so the applications be allowed and the petitioners be enlarged on bail. 8. At this stage, after considering the different facets of the case in hand, giving thoughtful and incisive consideration to the facts that the petitioners are joining and co-operating in the investigation, they are not in a position to tamper with the prosecution evidence nor in a position to flee from justice, they are permanent residents of the place, their custody is not at all required by the police, nothing remains to be recovered at their instance, considering the fact that the petitioners are ready and willing to abide by the terms and conditions of bail, in case granted, the fact that the custodial interrogation of the petitioners are not at all required by the police, as they are joining and co-operating in the investigation and also considering the overall facts, which have come on record, and without discussing the same at this stage, this Court finds that the present is a fit case where the judicial discretion to admit the petitioners on bail, in the event of their arrest, is required to be exercised in their favour. Accordingly, the petitions are allowed and it is ordered that the petitioners, in the event of their arrest, in case FIR No. 91 of 2020, dated 17.05.2020, under Sections 409, 120 IPC and Sections 4 and 7 of The Himachal Pradesh Prevention of Specific Corrupt Practices Act, 1983, registered in Police Station Jwalamukhi, District Kangra, H.P., shall be released on bail forthwith in this case, subject to their furnishing personal bond in the sum of Rs.25,000/- (rupees twenty five thousand) each with one surety each in the like amount to the satisfaction of the Investigating Officer. The bail is granted subject to the following conditions: (i) That the petitioners will appear before the learned Trial Court/Police/authorities as and when required. (ii) That the petitioners will not leave India without prior permission of the Court. (iii) That the petitioners 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. 9. In view of the above, the petitions are disposed of. Copy dasti.