Allowed

Subhash Kayastha v. State of Hp

Himachal Pradesh HC14 Jun 2022CRMPM/1035/2022

Case brief

AI extract

What is this about?

The High Court of Himachal Pradesh granted regular bail to an 80-year-old petitioner accused of cheating and forgery. Balancing the gravity of the offence against the petitioner's infirm age and the fact that only half of the prosecution witnesses were examined, the court held bail appropriate under Section 437 CrPC.

What did the court decide?

Petitioner enlarged on bail furnishing bonds of Rs. 5,00,000 with one local surety, subject to conditions regarding attendance, non-tampering, and not leaving India.

Subhash Kayastha Vs State of Hp — Cheating and Forgery | Himachal Pradesh HC (2022)

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THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 14^TH DAY OF JUNE 2022

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BEFORE

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HON'BLE MR. JUSTICE SANDEEP SHARMA CRIMINAL MISC. PETITION(MAIN) NO. 1035 OF 2022

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Between:-

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SUBHASH KAYASTHA, S/O SHRI GIAN CHAND R/O VILLAGE NAGGAR, POST OFFICE KUNIHAR, TEHSIL ARKI, DISTRICT SOLAN, HIMACHAL PRADESH AGED ABOUT 86 YEARS, PRESENTLY LODGED IN CUSTODY SINCE 05.10.2019 IN FIR NO. 26/2019 DATED 21.02.2019

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PETITIONER

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(BY MR. RAJIV RAI, ADVOCATE)

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AND

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STATE OF HIMACHAL PRADESH

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RESPONDENT

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(BY MR. SUDHIR BHATNAGAR AND MR. NARINDER GULERIA, ADDITIONAL ADVOCATES GENERAL WITH MR. SUNNY DHATWALIA, ASSISTANT ADVOCATE GENERAL)

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HC RAMESH CHAND NO. 103, POLICE STATION GHUMARWIN, DISTRICT BILASPUR, HIMACHAL PRADESH

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Whether approved for reporting:

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This petition coming on for orders this day, the court passed the following:

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O R D E R

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Bail petitioner-Subhash Kayastha, who is behind bars since

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5.10.2019, has approached this court in the instant proceedings filed under

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S. 439 CrPC for grant of regular bail in FIR No 26, dated 10.1.2019 under

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Ss. 420, 120(B), 406, 465, 468, 471 and 201 IPC registered at Police Station Ghumarwin, District Bilaspur, Himachal Pradesh. RespondentState has filed status report and the Investigating Officer has come present with record/status report. Record perused and returned.

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Close scrutiny of the status report/record made available to this court reveals that the complainant (17 in number), lodged a complaint with learned Additional Chief Judicial Magistrate, Ghumarwin, District Bilaspur, Himachal Pradesh under S.156(3) CrPC, seeking therein a direction to the police to register case against the bail petitioner and his son, Rohit Kayastha for theirs having committed offences punishable under Ss. 420, 120(B), 406, 465, 468, 471 and 201 IPC and for further investigation of the case. Complainants alleged that the present bail petitioner in connivance with his son, Rohit Kayastha took Rs. 29.65 Lakh in total from them for providing Government jobs to their wards. However, neither the jobs were provided nor the money allegedly taken from them was returned. It has come in the investigation that the bail petitioner and his son Rohit Kayastha issued forged appointment letters in favour of the wards of the complainants. After completion of the investigation, Challan stands filed in the competent court of law and out of 38 prosecution witnesses, 17 stand examined. Since nothing remains to be recovered from bail petitioner and he is behind bars for more than 2 ½ years, prayer has been made on his behalf for grant of regular bail.

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Mr. Sudhir Bhatnagar, learned Additional Advocate General,

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while fairly acknowledging the factum with regard to filing of Challan in competent court of law, contends that keeping in view gravity of offence

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alleged to have been committed by the bail petitioner, he does not deserve leniency and his prayer for bail deserves outright rejection. While making this court peruse the status report/record, Mr. Bhatnagar, submits that the bail petitioner in connivance with his son Rohit Kayastha who is a coaccused in the same FIR, duped as many as 17 persons and issued 16 fake appointment letters and as such, it cannot be said that he has been falsely implicated. While fairly admitting the fact that 17 prosecution witnesses stand examined, Mr. Bhatnagar, states that since material prosecution witnesses are yet to be examined, it may not be in the interests of justice to enlarge bail petitioner on bail at this stage because, in the event of being enlarged on bail, he may not only flee from justice but may also tamper with the prosecution evidence.

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Having learned counsel for the parties and perused the material available on record, this court finds that a sum of Rs. 29,65,000/- was received by bail petitioner and his son from the complainants with the assurance that they would provide them Government jobs but, neither such Government jobs were provided nor the money was repaid to the complainants, rather, the record reveals that the bail petitioner prepared 16 fake appointment letters and handed over the same to the complainants, which on verification were found to be forged.

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No doubt, bail petitioner has committed a serious offence as has been taken note herein above, but this court cannot lose sight of the fact that the bail petitioner is more than 80 years old and has already undergone incarceration for almost 2 ½ years. Though, guilt if any of the bail petitioner is yet to be established on record by the prosecution by

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leading cogent and convincing evidence but even if it is presumed, at this stage, that the bail petitioner has indulged in a heinous crime, as discussed herein above, maximum punishment for the offences allegedly committed by him is seven years, out of which he has already undergone two and half years. No doubt, statements of 17 prosecution witnesses stand already recorded but the fact remains that 21 prosecution witnesses are yet to be examined and in that process, considerable time is likely to be consumed.

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Otherwise also, prayer made on behalf of the bail petitioner for grant of bail deserves to be considered in light of provisions contained under S. 437 CrPC. S. 437 CrPC contains provision with regard to bail in case of non-bailable offences. S. 437 (1) CrPC provides that, “ when any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bai l” but not in those case where offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years. Proviso to S. 437 clearly provides that, “ Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it such person is under the age of sixteen years or is a woman or is sick or infirm ”. It is not in dispute in the case at hand, that the bail petitioner is more than 80 years old and as such, falls in the category

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of ‘infirm’.

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Though, prayer made on behalf of bail petitioner for grant of bail has been seriously opposed by learned Additional Advocate General on the ground that permanent address of bail petitioner is not known but careful perusal of record reveals that bail petitioner has been residing at village Naggar, Post Office Kunihar, Tehsil Arki, District Solan, for a long time. Bail petitioner may not be hailing from the State of Himachal Pradesh but once it stands established that at the time of commission of offence he was residing at aforesaid place i.e. Nagar,, prayer made on behalf of the bail petitioner for bail cannot be rejected on the ground that he is not a permanent resident of that area. Needles to say, his son Rohit Kayastha is already behind bars and as such, it cannot be said that in the event of petitioner being enlarged on bail, he would flee from justice. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to stringent conditions.

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Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.

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In Manoranjana Sinh alias Gupta versus CBI , (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied

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in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

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The Apex Court in Prasanta Kumar Sarkar versus Ashis

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Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.

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In view of above, bail petitioner has carved out a case for himself, as such, present petition is allowed. Bail petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.5,00,000- with one local surety in the like amount, to the satisfaction of the learned trial Court, besides the following conditions:

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(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

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(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

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dissuade him/her from disclosing such facts to the Court or the Police Officer; and

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(d) He shall not leave the territory of India without the prior permission of the Court.

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It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.

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Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The petition stands accordingly disposed of.

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Copy Dasti.

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( Sandeep Sharma), Judge

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June 14, 2022 (vikrant)

Subhash Kayastha v. State of Hp

Case brief

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Subhash Kayastha v. State of Hp

Case brief

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