CRMPM/2298/2023 on 29 December 2023

1. Cr.MPM No.2298 of 2023

Amrit Sharma ....Petitioner Versus State of Himachal Pradesh

....Respondent

2. Cr.MPM No.2299 of 2023

Mukesh Sharma ....Petitioner Versus State of Himachal Pradesh

....Respondent

Coram

Hon’ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting? No For the Petitioner(s) : Mr Ajay Kochhar, Sr. Advocate with Mr. Anubhav Chopra & Mr. Vivek Sharma, Advocates in both the petitions. For Respondent/State

For the complainant :

: Mr. Jitender Sharma, Additional Advocate General in both the petitions.

Mr. Ajay Sharma, Sr. Advocate with Mr. Atharv Sharma, Advocate in both the petitions.

Rakesh Kainthla,Judge

The police registered FIR No.95 of 2023 dated 22.08.2023 for the commission of offences punishable under

Sections 3(1)(r) and Section 3 (1) (s) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (in Short SC&ST Act),and Section 504 & 506 of Indian Penal Code (IPC) at Police Station Dharampur, District Solan, H.P.

2. The petitioners have filed the present petitions for seeking regular bail. It has been asserted that FIR No.95/2023 dated 22.08.2023 was registered against the petitioners for the commission of offences punishable under Sections 3(1)(r) and Section 3 (1) (s) of the SC&ST Act and Sections 504 & 506 of IPC at Police Station, Dharampur, District Solan, H.P. at the instance of Vijay Laxmi alias Rajjo. No incident had taken place. The complaint was filed at the instance of Brijesh Kharbanda and Mohit Satija, who had a dispute with petitioner Mukesh Sharma-over the construction of the hotel at Mauja Barog. Petitioner Amrit Sharma is being dragged into the present matter because she is the wife of Mukesh Sharma, the partner of “M M Square”. He is being pressurized by the other partner Brijesh Kharbanda and his associates to give up his legitimate rights in the property. Petitioner Mukesh Sharma had filed the complaint against the informant and the other partners. The informant is an employee of Brijesh Kharbanda. There is a considerable delay in reporting the

matter to the police. The ingredients of Sections 3(1)(r) and 3(1)(s) of SC&ST (Prevention of Atrocities Act) are not made out. Petitioner Amrit Sharma is aged 65 years and petitioner Mukesh Sharma is aged about 66 years. They would abide by all the terms and conditions, which may be imposed by the Court. Hence, the petition.

3. The police filed a status report asserting that the informant made a complaint to the police that she was a Safai Karamchari in the building of Mohit Satija. One room was provided to her by Mohit Satija. Petitioner Mukesh Sharma is the partner of Brijesh Kharbanda, a friend of Mohit Satija. A building called MM Square is being constructed at some distance from the residence of the informant. Petitioner Mukesh Sharma resides in one room of Green View Cottage and supervises the work of MM Square. Amrit Sharma and family members of Mukesh Sharma often visit the place. There is a dispute between Mukesh Sharma and Mohit Satija. Mukesh Sharma abuses the informant, her husband and Charan Singh Arora. Mukesh Sharma wanted to get the room demolished in which the informant was residing. He had quarrelled with the informant in February 2023. She informed her employer Mohit Satija. Subsequently, the room was demolished after talking to

Mohit Satija. One room was allotted in Green View Cottage. Mukesh Sharma started using different tactics to evict her. She made a complaint to Mohit Satija, who revealed that a lot of money was stuck with Mukesh Sharma. Action would be taken after the settlement of the dispute. Mukesh Sharma used to abuse the informant in the name of her caste. On 25.06.2023, Amrit Sharma, Krishan Sharma, sister-in-law of Mukesh Sharma and his son quarrelled with the informant on something. They asked her to get out of the building. Mukesh Sharma, his wife Amrit Sharma (petitioners) and their sister-in-law abused the informant in the name of her caste. The informant’s husband and Charan Singh tried to intervene. The accused also quarrelled with them. Mukesh Sharma had dragged the informant and threatened to evict her in February 2023. The police registered the FIR and conducted the investigations. The informant produced one Pen drive, which was seized by the police. Informant video recorded the incident but she could not prepare the video of the accused(s) abusing her in the name of her caste. The petitioners can influence the investigation in case, they are released on bail. Hence, it was prayed that the present petitions be dismissed.

4. I have heard Mr Ajay Kochhar, learned Senior Counsel assisted by Mr. Anubhav Chopra & Mr. Vivek Sharma, learned counsel for the petitioners/accused, Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State and Mr. Ajay Sharma, learned Senior Counsel assisted by Mr. Atharv Sharma, learned counsel for the complainant/informant.

5. Mr. Ajay Kochhar, learned Senior Counsel for the petitioners/accused submitted that the petitioners were falsely implicated. The incident took place in February 2023 and June 2023, whereas the matter was reported to the police on 22.08.2023 after an inordinate delay. It is an admitted version that there is a dispute between petitioner Mukesh Sharma, who is the husband of Amrit Sharma and the employer of the informant. Hence, the possibility of false implication at the instance of the informant’s employer cannot be ruled out. Therefore, he prayed that the present petitions be allowed and the petitioners be released on bail.

5. Mr. Jitender Sharma, learned Deputy Advocate General for the respondent/State submitted that the petitioners had abused the informant-a member of the marginalized section of the society in the name of her caste. A proper explanation for the delay has

been provided. Therefore, he prayed that the present petitions be dismissed.

6. Mr. Ajay Sharma, learned Senior Counsel for the informant submitted that the petitioners can intimidate the informant and indulge in the commission of a similar offence, in case, they are released on bail. Therefore, he prayed that the present petitions be dismissed.

7. I have given considerable thought to the submissions at the bar and have gone through the record carefully.

8. The Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under: -

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; (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;

(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.

(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.

(d) Frivility 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.

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 have been explained in the following words:

“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:

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

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

(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].)”

9. A similar view was taken in State of Haryana vs Dharamraj2023 SCC Online 1085, wherein it was observed:

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

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

(ii) nature and gravity of the accusation;

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

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

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

(vi) likelihood of the offence being repeated;

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

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

10. The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

11. It was specifically stated in the FIR that there is a dispute between the employer and petitioner Mukesh Sharma. The incident had taken place in February 2023 and in June 2023, whereas, the matter was reported to the police on 22.08.2023.The explanation provided by the informant is that her employer told her that his money was stuck with Mukesh Sharma and that the matter would be reported after the dispute was settled. Another explanation was that the informant’s employer was abroad and the matter was reported after he came to India. Both these explanations are not satisfactory. The dispute between the employer and Mukesh Sharma has nothing to do with the criminal

act done by the petitioners. The detailed history of the dispute in the petitions clearly shows that there is something more than what has been mentioned in the FIR.

12. The police specifically stated in the status report that a video recording of the incident was produced by the informant, however, the informant stated that she could not record the abuses. This is no explanation. If she was in a position to record the incident, there is no reason why she should be unable to record the abuses as well. The absence of the abuses in the video recording makes it difficult to connect the petitioners with the commission of offences punishable under Section 3(1)(r) and 3(1)(s) of the SC&ST (Prevention of Atrocities) Act.

13. The informant stated that Amrit Sharma and her husband Mukesh Sharma, sister-in-law, brother-in-law and son picked up a quarrel with the complainant on something. She has not even mentioned the genesis of the incident. It is difficult to believe that the complainant would have remembered the abuses but not the fact that led to the dispute between the parties.

14. It is admitted that the petitioners are not residing at the place of the incident. Therefore, the apprehension that the petitioners can intimidate the witnesses does not have any basis.

15. No complaint of any intimidation was made by the informant even after the petitioners had secured bail from the Court. Thus, the apprehension expressed by the police that the petitioners can intimidate the witnesses does not have any basis.

16. Therefore, the petitioners deserve to be released on bail. Hence, the present petition is allowed and the orders dated 11.09.2023 are made absolute.

17. The observation made herein before shall remain confined to the disposal of the petitions and will have no bearing, whatsoever, on the merits of the case.

(Rakesh Kainthla)

Judge 29th December,2023

(Saurav pathania)