Allowed

Abhishek Gupta v. State of Hp

Himachal Pradesh HC17 Sept 2024CRMPM/1891/2024

Case brief

AI extract

What is this about?

Regular bail plea by a man arrested for theft of a vehicle's Electronic Control Module in FIR No. 14/2024 under Sections 342 and 379 IPC. Recovery already effected, charge sheet not filed after over six weeks in custody, offence triable by Magistrate; bail granted with conditions.

What did the court decide?

Petitioner ordered released on bail of Rs.25,000 with two like sureties, subject to conditions on witnesses, travel notice, passport surrender and contact details.

Abhishek Gupta Vs State of Hp — Bail and Remand | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:8611 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr. MP (M) No. 1891 of 2024 Reserved on: 6.9.2024 Date of Decision: 17.9.2024.

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Abhishek Gupta ...Petitioner

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Versus

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State of Himachal Pradesh ...Respondent

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Coram

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Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No.

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For the Petitioner : Mr. G.R. Palsra, Advocate. : For the Respondent Mr Prashant Sen, Deputy Advocate General, with SI/SHO Gagan Singh, P.S. Dhanotu, District Mandi, H.P.

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Rakesh Kainthla, Judge

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The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested vide FIR No. 14 of 2024, dated 13.2.2024, registered for the commission of offences punishable under Sections 342 and 379 of IPC in Police Station Dhanotu, Tehsil Sundernagar, District Mandi, H.P. The petitioner is innocent and he has not

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Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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committed any offence. The investigation is complete and no recovery is to be effected from the petitioner. FIR No. 17 of 24, dated 29.1.2024, FIR No. 23/24 and FIR No. 38/24, dated 31.1.2024 were registered against the petitioner. The petitioner has already been released on bail in these FIRs. The petitioner has been in custody since 22.7.2024 and no fruitful purpose would be served by detaining him in custody. The petitioner is a resident of Delhi. He has deep roots in the society and there is no chance of his absconding. He shall abide by all the terms and conditions of the bail, which the Court may impose. Hence, the present petition.

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The petition was opposed by filing a status report asserting that the informant made a complaint to the police that he had parked his vehicle outside his home. The Electronic Control Module (ECM) of his vehicle, his goggles and other articles were stolen on the night of 27.1.2024. The police registered the FIR and conducted the investigation. The police arrested the petitioner in another FIR involving the theft of ECM. He revealed on inquiry that he and Rohit had stolen 8 ECM while returning from Manali. The petitioner has got the ECM recovered to SIT of Police Station, Sadar, Mandi. The informant

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also identified the ECM. The petitioner is to be interrogated. His co-accused is yet to be arrested. Hence, it was prayed that the present petition be dismissed.

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I have heard Mr. G.R. Palsra, learned counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State.

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Mr. G.R. Palsra, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The police have already recovered the ECM and no recovery is to be effected from the petitioner. No useful purpose would be served by detaining the petitioner in custody. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.

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Mr. Prashant Sen, learned Deputy Advocate General, for the respondent/State submitted that the petitioner was found involved in the commission of a similar offence and he can commit an offence in case of release on bail. Therefore, he prayed that the present petition be dismissed.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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The parameters for granting bail were considered by

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the Hon’ble Supreme Court in Bhagwan Singh v. Dilip Kumar @ Deepu @ Depak , 2023 SCC OnLine SC 1059, wherein it was observed as under: -

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“ 12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

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(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

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(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

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(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

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(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

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13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts has been explained in the following words:

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“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

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( a ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

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( b ) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

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( c ) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688 ] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124 ].)”

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A similar view was taken in State of Haryana vs

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Dharamraj 2023 SCC Online 1085, wherein it was observed:

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7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the

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grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus:

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‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

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(ii) nature and gravity of the accusation;

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(iii) severity of the punishment in the event of conviction;

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(iv) danger of the accused absconding or fleeing, if released on bail;

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(v) character, behaviour, means, position and standing of the accused;

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(vi) likelihood of the offence being repeated;

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(vii) reasonable apprehension of the witnesses being influenced; and

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(viii) danger, of course, of justice being thwarted by grant of bail.’

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The status report shows that the custody of the

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petitioner was transferred as per the orders of learned JMFC-II.

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He was interrogated and he had already got effected the recovery

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of ECM to the police of Police Station, Sadar, SIT; however, it has not been explained that if the recovery was effected by the SIT, then why he was not arrested by the SIT? It is not even mentioned whether the statement under Section 27 of the Indian Evidence Act [proviso to Section 23 of Bharatiya Sakshya Adhiniyam, 2023 (BSA)] was recorded. The identification of the ECM is stated to have been made before the police. The admissibility of such a statement is prima facie doubtful (please see Ramkishan Mithanlal Sharma v. State of Bombay, (1954) 2 SCC 516 and Chunthuram v. State of Chhattisgarh, (2020) 10 SCC 733 ).

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The petitioner was arrested on 22.7.2024. The charge sheet has not yet been filed even though more than 1½ months have elapsed. It has been stated in the status report that another accused is yet to be arrested which means that the challan is not likely to be filed soon. It would take some time thereafter to record the evidence. Therefore, the petitioner cannot be detained in judicial custody indefinitely waiting for the trial to commence and conclude.

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The petitioner is accused of committing the offence punishable under Section 379 of IPC which is triable by a

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Neutral Citation No. ( 2024:HHC:8611 )

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Magistrate. Hence, the offence is not grave enough. It was laid down by the Hon’ble Supreme Court in Abdulmajid Abdulsattar Menon Vs. State of Gujarat, Criminal Appeal No. 3525 of 2024, decided on 27.8.2024 that in a case triable by the Magistrate, the bail should be granted to the accused. Thus, the petitioner cannot be denied bail.

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Consequently, the present petition is allowed and the petitioner is ordered to be released on bail in the sum of ₹25,000/- with two sureties of the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following terms and conditions: -

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(I) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever;

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(II) The petitioner shall attend the trial in case a charge sheet is presented against him and will not seek unnecessary adjournments;

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(III) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of intending visit to the SHO, the Police Station concerned and the Trial Court;

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(IV) The petitioner will surrender his passport, if any, to the Court; and

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(V) The petitioner will furnish his mobile number, and social media contact to the Police and the Court and will abide by the summons/notices received from

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the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

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It is expressly made clear that in case of violation of

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any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

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The observation made herein before shall remain

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confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.

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( Rakesh Kainthla) Judge

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17^th September, 2024 (Chander)

Abhishek Gupta v. State of Hp

Case brief

What is this about?

What did the court decide?

Abhishek Gupta v. State of Hp

Case brief

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