IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P(M) No. 49 of 2009 and Cr.M.P.(M) No. 114 of 2009. Date of decision: March 27, 2009. 1. Cr.M.P.(M) No. 49 of 2009. Asho Ram …..Petitioner. Vs. State of H.P. …. Respondent. 2. Cr.M.P.(M) No. 114 of 2009. Rajesh Kumar …..Petitioner. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioner(s): Mr. Vinay Thakur, Advocate, for the petitioner in Cr.M.P.(M) No. 49 of 2009 and Mr. R.L.Chaudhary, Advocate, for the petitioner in Cr.M.P.(M) No. 114 of 2009. For the respondent (s) : Mr. A.K. Bansal, Addl. Advocate General. Kuldip Singh, Judge (oral). This order shall dispose of Cr.M.P.(M) No. 49 of 2009 and Cr.M.P.(M) No. 114 of 2009, as both have arisen from FIR No. 90 dated 11.9.2007, registered at Police Station, Tissa, under Sections 409, 420, 34 IPC and Section 13 of the Prevention of Corruption Act. The respondent has filed status report in both the cases. In the status report filed in Cr.M.P.(M) No. 114 of 2009, it has been stated Whether the reporters of the local papers may be allowed to see the Judgment? …2… that in addition to amount of Rs.41,00,000/- lacs, another amount of Rs.7,73,100/- has also been found embezzled. Cr.M.P.(M) No. 49 of 2009 and Cr.M.P.(M) No. 114 of 2009 have been filed under Section 439 Cr.P.C. for releasing petitioners on bail in FIR No. 90 of 2007. 2. Heard and perused the record. In Cr.MP(M) No. 49 of 2009, the petitioner has stated that allegations against him are that he conspired with other two persons, namely Rajesh Kumar and Tek Chand and embezzled an amount of Rs.41,00,000/- from Tissa Government Treasury, District Chamba. The petitioner was arrested on 7.4.2008. The petitioner has submitted that he joined Tissa Treasury on 15.6.2007 and only an amount of Rs.3,00,000/- was allegedly embezzled after the joining of petitioner at Tissa Treasury. The petitioner had earlier filed in this court Cr.M.P.(M) No. 509 of 2008, which was dismissed on 30.5.2008 and Cr.M.P.(M) No. 622 of 2008, which was dismissed on 7.7.2008. The challan has been presented and next date in the case is fixed on 30.3.2009 for consideration of charge in court below. The learned counsel for the petitioner has submitted that prosecution has filed an application in the court below on the last date of hearing for returning of documents to facilitate further investigation in the case. This has not been denied by the learned Additional Advocate General after taking instructions from Man Chand, A.S.I., Police Station, Tissa present in the court. The learned counsel for the petitioner has submitted that there are in all 24 witnesses and in view of the stand of the prosecution, now there is uncertainty for the completion of the trial. The petitioner is permanent resident of village Chula, Tehsil and …3… District Chamba and is ready to furnish bail bonds in accordance with the directions of this court. The petitioner will not jump the bail nor he can afford to do so as he is permanent resident of the aforesaid place. At the stage of last bail application, which was decided on 7.7.2008, the investigation in the case was not complete. It has been submitted that petitioner has been falsely implicated in the case and he is innocent. The learned counsel for the petitioner has prayed for grant of bail to the petitioner. 3. In Cr.M.P.(M) No. 114 of 2009, the petitioner has submitted that he was arrested on 7.4.2008 in the case, he is innocent and has committed no offence. The petitioner had earlier filed in this court Cr.M.P.(M) No. 676 of 2008, which was dismissed on 7.7.2008 and Cr.M.P.(M) No. 1047 of 2008, which was dismissed on 14.11.2008. The learned counsel for the petitioner has submitted that petitioner is permanent resident of Anu Kalan, Tehsil Hamirpur and is ready to furnish bail bonds in accordance with the directions of this court and the petitioner will not jump the bail nor he can afford to do so as he is permanent resident of aforesaid village. The rest of the submissions of the learned counsel for the petitioner are the same as have been made by the learned counsel for the petitioner in Cr.M.P.(M) No. 49 of 2009. 4. The learned Additional Advocate General has opposed the bail applications and has submitted that serious offence has been committed by both the bail applicants. This court has lastly rejected the bail application of Asho Ram on 7.7.2008 and that of Rajesh Kumar on 14.11.2008, as per the stand of the petitioners. There is no …4… change of circumstance, and, therefore, bail applications are not maintainable. The learned Additional Advocate General, has however, not denied that prosecution has filed an application in the court below for return of record for further investigation. It has also not been denied that charge has not yet been framed against the petitioners in the court and the prosecution is likely to examine 24 witnesses in the case. 5. The bail applications Cr.M.P(M) No. 622 of 2008 and Cr.M.P.(M) No. 676 of 2008 of the petitioners were rejected by this court by a common order dated 7.7.2008 as till then the case was under investigation. The bail application Cr.M.P.(M) No. 1047 of 2008 was rejected on 14.11.2008 on the ground that bail application was earlier considered by this court and there was no change of circumstance and embezzled amount swelled to Rs.48,73,100/-. 6. The petitioners are in custody since 7.4.2008. The challan has been presented in the court, but charge has not yet been framed against the petitioners in the court below. The prosecution is likely to examine 24 witnesses in the case. The prosecution has filed an application in the court below for return of documents for further investigation. In this situation, now there is uncertainty regarding the progress of the case and even by proximation, it cannot be said that how much time now the prosecution will take for completion of the trial. The petitioners are already in custody for the last more than 11 months. 7. In Shiv Nandan Prasad vs. State of Jharkhand 2005 (11) SCC 453, and Shashi Bhushan Jaruhar vs. State of Bihar …5… and another 2005 (11) SCC 457, the appellants were in custody for the last 15 and 14 months for which FIR was registered. The Hon’ble Supreme Court in the bail orders has noticed that in matters pertaining to fodder scam, that court had released the accused who were in jail for about six months or more on bail, and, therefore, granted bail to the appellants in both the cases. 8. In the present petitions, the petitioners are in jail for the last more than eleven months. The prosecution is now proceeding to reinvestigate the case in view of an application filed by it in the court below. The case against the petitioners appears to be documents based. In both the status reports, the prosecution has not come forward with the plea that in case the petitioners are released on bail, they will flee away from justice or they will in any manner tamper the prosecution evidence. The petitioners are ready to furnish the bail bonds. They are permanent residents of their respective places, mentioned above. 9. In the light of above discussion and facts and circumstances of the case, the petitioners have made out a case for grant of bail. Accordingly both the applications, being Cr.M.P.(M) No. 49 of 2009 and Cr.M.P.(M) No. 114 of 2009 are allowed and both the petitioners are ordered to be released on bail on their furnishing bail bonds in the sum of Rs.50,000/- each with two sureties each of the like amount to the satisfaction of learned Special Judge, Chamba in case FIR No. 90 of 2007, registered at Police Station, Tissa, District Chamba, H.P. with the conditions that petitioners shall not hamper the investigation or tamper the prosecution evidence in any manner. …6… The petitioners shall not leave India without the leave of the trial court. 10. Any observation made hereinabove shall not be construed as an expression of opinion over the merits of the case. Copy dasti. March 27, 2009. ( Kuldip Singh ) (Hem) Judge.