Punjab-Haryana High Court
Manju Tiwari vs State Of Punjab on 12 December, 2024
Author: Jasjit Singh Bedi
Bench: Jasjit Singh Bedi
Neutral Citation No:=2024:PHHC:166967
CRM-M-43093-2024 -1-
(101)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-43093-2024
Date of decision :12.12.2024
MANJU TIWARI
... Petitioner
Versus
STATE OF PUNJAB
...Respondent
CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI
Present: Mr. Ankush Aggarwal, Advocate and
Mr. Shailesh Aggarwal, Advocate
for the petitioner.
Mr. Harkanwar Jeet Singh, Asstt. A.G., Punjab
Mr. R.S. Sekhon, Advocate
for the complainant.
****
JASJIT SINGH BEDI, J.
The prayer in this 2nd petition under Section 438 of Cr.P.C.
is for the grant of anticipatory bail to the petitioner in case FIR No.03
dated 07.01.2023 (Annexure P-1) registered under Sections 420, 406,
465, 467, 468, 471, 120-B IPC at Police Station Cantt. Ferozepur,
District Ferozepur.
2. The learned counsel for the petitioner contends that the
allegations levelled against the petitioner are baseless. No offence under
Section 420 IPC is made out as there is no intent to deceive the
complainant party from the very inception. As a matter of fact, a sum of
Rs.60,10,000/- has been received by the complainant party and the
dispute, if any, would be of a civil nature. Similarly, no offence under
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Section 406 IPC is made out as there are no allegations of breach of
trust. With reference to offences under Sections 465, 467, 468 and 471
IPC, it is contended that there is no evidence of the fabrication of the
Resolution dated 03.06.2016 and only allegations are levelled without
anything more. In fact, the instant FIR is a counter-blast to FIR No.1464
dated 09.12.2018 registered at the instance of the accused party against
the complainant party under Sections 406, 419, 420, 467, 468 and 471
IPC. Be that as it may, the petitioner who is a lady is merely a sleeping
partner in the business being the wife of B.N. Tiwari. No specific
allegations have been levelled against her. Therefore, she is entitled to
the concession of anticipatory bail.
3. On the other hand, the learned State counsel along with the
learned counsel for the complainant contend that this is the second bail
petition filed by the petitioner, the first one having been argued and
withdrawn on 16.07.2024. No change in circumstances have been
enumerated entitling the petitioner to the grant of pre-arrest bail. She has
now been declared a proclaimed person along with her co-accused as is
borne out from the order dated 25.11.2024 passed by the JMIC,
Ferozepur. The copy of the said order is marked as X. Such a person is
not entitled to the concession of anticipatory bail as has been held by the
Hon’ble Supreme Court in the cases of Lavesh Vs. State (NCT of
Delhi), 2012(4) R.C.R. (Criminal) 240, Abhishek Vs. State of
Maharashtra & others, 2022 AIR Supreme Court 2488 and Srikant
Upadhyay & others Vs. State of Bihar & another, 2024 AIR Supreme
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Court 1600. Even otherwise, a bare reading of the FIR would show that
the offence is prima facie made out against the petitioner who is a
Director of the Company and her co-accused. Therefore, she is not
entitled to the concession of anticipatory bail.
4. I have heard the learned counsel for the parties.
5. A perusal of the FIR would reveal specific averments to the
effect that the accused had a dishonest intention from the very inception
in cheating the complainant party. As against an amount of Rs.2 crores, a
sum of Rs.60,10,000/- was paid to the complainant party for transfer of
shares of M/s Pavittar Entertainment Pvt. Ltd. to M/s Mars Media
Movement Pvt. Ltd.. Though, the shares were transferred, the amount in
question has not been paid to the complainant party. The Resolution
dated 03.06.2016 has been prepared by forging the signatures of
Chinderpal Kaur, wife of the complainant. Using this Resolution, the
accused persons opened an account with the Bank of Maharashtra at
Gomti Nagar, Lucknow in the name of their Company. A letter dated
09.10.2018 has been fabricated by the accused in order to cheat the
complainant party and by using the same a false and frivolous case was
filed against the complainant party. The original documents in question
are required to be recovered. The digital signatures of the complainant
party have also been fabricated to upload information on the website of
the Registrar of the Company. Thus, apparently, the offence is prima
facie made out. Therefore, in view of the judgment of the Hon’ble
Supreme Court in the case of Sumitha Pradeep Vs. Arun Kumar C.K.
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& Anr. 2022 Live Law (SC) 870, as the offence is prima facie made out,
the petitioner is not entitled the concession of bail.
6. It may further be relevant to mention here that the first bail
petition of the petitioner was withdrawn on 16.07.2024. Thereafter, the
instant petition came to be filed. However, on 25.11.2024, the JMIC,
Ferozepur passed the following order:-
“Case was fixed for awaiting presence of accused BN Tiwari,
Kush Tiwari, Manju Tiwari and Alok Pandey. Mandatory
period expired. Neither accused nor anybody appeared on
behalf of above accused. Therefore, accused BN Tiwari, Kush
Tiwari, Manju Tiwari and Alok Pandey are hereby declared
proclaimed persons. Necessary intimation in this regard be
sent to concerned quarter. File be consigned to record room.”
7. With respect to grant of anticipatory bail to an absconder
the Hon’ble Supreme Court.
In Lavesh (supra), held as under:-
“10. From these materials and information, it is clear that the
present appellant was not available for interrogation and
investigation and declared as “absconder”. Normally, when
the accused is “absconding” and declared as a “proclaimed
offender”, there is no question of granting anticipatory bail.
We reiterate that when a person against whom a warrant had
been issued and is absconding or concealing himself in order
to avoid execution of warrant and declared as a proclaimed
offender in terms of Section 82 of the Code is not entitled the
relief of anticipatory bail.”
(emphasis supplied)
In Abhishek (supra), held as under:-
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“21. As regards the implication of proclamation having been
issued against the appellant, we have no hesitation in making
it clear that any person, who is declared as an ‘absconder’
and remains out of reach of the investigating agency and
thereby stands directly at conflict with law, ordinarily,
deserves no concession or indulgence. By way of
reference, we may observe that in relation to the indulgence
of pre-arrest bail in terms of section 438 CrPC, 1973 this
Court has repeatedly said that when an accused is absconding
and is declared as proclaimed offender, there is no question of
giving him the benefit of section 438 CrPC, 1973. For
example, Prem Shankar Prasad v. State of Bihar and Anr.:
(2021) SCC OnLine SC 955. What has been observed and said
in relation to section 438 CrPC, 1973 applies with more
vigour to the extraordinary jurisdiction of this Court under
Article 136 of the Constitution of India. The submissions on
behalf of the appellant for consideration of his case because
of application of stringent provisions impinging his
fundamental rights does not take away the impact of the
blameworthy conduct of the appellant. Any claim towards
fundamental rights also cannot be justifiably made without the
person concerned himself adhering to and submitting to the
process of law.”
(emphasis supplied)
In Srikant Upadhyay (supra), held as under:-
“24. We have already held that the power to grant anticipatory
bail is an extraordinary power. Though in many cases it was
held that bail is said to be a rule, it cannot, by any stretch of
imagination, be said that anticipatory bail is the rule. It cannot
be the rule and the question of its grant should be left to the
cautious and judicious discretion by the Court depending on
the facts and circumstances of each case. While called upon to
exercise the said power, the Court concerned has to be very5 of 6
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cautious as the grant of interim protection or protection to the
accused in serious cases may lead to miscarriage of justice
and may hamper the investigation to a great extent as it may
sometimes lead to tampering or distraction of the evidence. We
shall not be understood to have held that the Court shall not
pass an interim protection pending consideration of such
application as the Section is destined to safeguard the freedom
of an individual against unwarranted arrest and we say that
such orders shall be passed in eminently fit cases. At any rate,
when warrant of arrest or proclamation is issued, the applicant
is not entitled to invoke the extraordinary power. Certainly, this
will not deprive the power of the Court to grant pre-arrest bail
in extreme, exceptional cases in the interest of justice. But then,
person(s) continuously, defying orders and keep absconding is
not entitled to such grant.”
(emphasis)
8. In view of the fact that the offence is prima facie made out,
there are no change in circumstances to file the instant 2nd petition and
the petitioner has been declared a proclaimed person, she is not entitled
to the concession of anticipatory bail. Therefore, the present petition
stands dismissed.
(JASJIT SINGH BEDI)
JUDGE
12.12.2024
JITESH Whether speaking/reasoned:- Yes/No
Whether reportable:- Yes/No
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