IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.144 of 2008 Date of decision: March 5, 2008. Koji Tateno …..Petitioner. Vs. State of H.P. …. Respondent. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 For the petitioners : Mr. Anup Chitkara, Advocate and Mr. Bhupinder Ahuja, Advocate. For the Respondent : Mr. A.K.Bansal, Addl. A. G. Kuldip Singh, Judge (Oral). Heard and perused the record. 2. This is an application, under Section 439 of the Code of Criminal Procedure, for releasing the petitioner on bail in FIR No. 290 of 2005, dated 13.6.2005, registered at Police Station, Kullu, under Sections 120-B, IPC and Section 13(2) of the Prevention of Corruption Act. Notice was given to the respondent on 26.2.2008 and learned Additional Advocate General has filed the status report of the case today in the court. 3. It has been submitted on behalf of the petitioner that petitioner was arrested on his return from Japan. He had no mensrea to abscond or to evade trial or to flee from justice. The petitioner was discharged for want of sanction in the case, vide order dated 8.8.2007 passed by the learned Special Judge, Kullu in Whether the reporters of the local papers may be allowed to see the Judgment? …2… Sessions Trial No. 3 of 2005. It has been submitted that once the petitioner was discharged, he cannot be tried again for the said offence. The judgement of discharge of the petitioner is to be read as a judgement of acquittal. A grave injustice has been done to the petitioner by re-arresting him after his acquittal by the court. There is no likelihood of the petitioner in any manner tampering with the prosecution evidence or influencing the prosecution witnesses. The petitioner earlier filed bail application, which has been rejected by the learned Special Judge, Kullu on 8.11.2007. The learned Special Judge has wrongly rejected the bail application of the petitioner, in the present bail application new grounds have also been taken. 4. The learned Additional Advocate General has opposed the bail application on the grounds that there is past history of criminal cases against the petitioner. He was arrested in FIR No. 134/04, under Section 20 of N.D.P.S. Act. After his arrest, passport of the petitioner bearing No. TG-0751660 was taken into possession, which was deposited in the security branch of Superintendent of Police office, Kullu. The petitioner was enlarged on bail on 9.3.2004 in that case by the learned Special Judge, Kullu. Thereafter, challan was filed in the court and the court issued summons against the petitioner in that case but he was not traceable. The Superintendent of Police, Kullu informed this fact to various authorities including the Incharge Immigration Check Posts in India. On 28.2.2005, an intimation regarding the arrest of the petitioner by Delhi police was received at Police Station, Kullu. SI Ram Karan took the petitioner in custody from the court of Additional Chief Metropolitan Magistrate, …3… Patiala House, New Delhi and at the time of his arrest he also took into possession his new passport bearing No. TG-5414313 and two air tickets. The said air tickets and passport were deposited with security branch of S.P. Office, Kullu. The petitioner did not appear in the court, the prosecution filed an application for cancellation of bail of petitioner before learned Sessions Judge, Kullu. In the meantime, on an inquiry ordered by S.P., Kullu, it was found that passport bearing No. TG-0751660 was taken into possession by SI Balwant Singh in FIR No. 134/04 and was deposited with MHC Roop Singh, who in turn sent the same to security branch of S.P., office Kullu of which accused Bhupinder Pal was the Incharge. It was further revealed in the report that while on bail, the petitioner had gone from India to Japan on the same passport bearing No. TG-0751660 and he sent back the passport to S.P. office Kullu on his arrival in Japan. It was concluded in the report that the said passport was given to petitioner by accused Bhupinder Pal, who was working as Incharge Security Branch, S.P. Office, Kullu 3.7.2002 to 5.9.2004. On completion of the inquiry, both the accused persons were charge-sheeted for the above offence. The learned Special Judge discharged the petitioner and Bhupinder Pal on 8.8.2007 for want of sanction, under Section 19 of the Prevention of Corruption Act. The prosecution filed fresh charge sheet before the learned Special Judge, Kullu on 30.10.2007 after obtaining sanction to prosecute Bhupinder Pal, the petitioner is also an accused in the case. The petitioner surrendered to the court on 30.10.2007 and was sent to judicial custody. …4… 5. It has been submitted on behalf of the prosecution that the petitioner was arrested on 13.6.2005 and remained in judicial lock up till 8.8.2007. He surrendered to the court of Special Judge of his own. It has been submitted by the learned Additional Advocate General that the petitioner in connivance with other accused has committed serious offence and there is every likelihood of his fleeing from justice if petitioner is enlarged on bail and keeping in view his past conduct, he is not entitled to bail, he is a foreign national. 6. No doubt, the petitioner was earlier discharged vide order dated 8.8.2007 by the learned Special Judge, but the learned Special Judge in the order had given the liberty to the prosecution to obtain prosecution sanction and file fresh charge-sheet against both the accused, after obtaining sanction. It is the case of the prosecution that petitioner and his co-accused Bhupinder Pal are now being prosecuted in FIR No. 290/05 after obtaining prosecution sanction to prosecute Bhupinder Pal accused and petitioner is also an accused in FIR No. 290/05. The learned counsel for the petitioner has contended that discharge of the petitioner by order dated 8.8.2007 is to be read as an order of acquittal and, therefore, petitioner cannot be again tied for the same. The present petition before this court is for releasing the petitioner on bail and not the petition for quashing the prosecution of the petitioner on the basis of FIR No. 290/05. The learned Special Judge in the order dated 8.11.2007 has observed that the petitioner had gone to Japan while on bail despite the specific condition in the bail order dated 9.3.2004 that he would not leave India without prior permission of the court which disentitles the …5… petitioner to be released on bail, as there is every possibility of his fleeing from justice if enlarged on bail. It has not been disputed that earlier bail order was to the effect that he will not leave India without the permission of the court and no such permission was taken by the petitioner from the court. The petitioner has past criminal history. He was prosecuted under the N.D.P.S. Act also, the petitioner is a foreign national. There is every likelihood of petitioner fleeing from justice in case he is released on bail. In the facts and circumstances of the case, no case for grant of bail, under Section 439 Cr.P.C. has been made out on behalf of the petitioner, hence the application is rejected. 7. The observations made in the order shall not be construed as expression of opinion on the merits of the case. March 5, 2008. ( Kuldip Singh ) (Hem) Judge.