Himachal Pradesh High Court
Rakesh Kumar vs State Of Himachal Pradesh on 26 February, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. 89 of 2018
Decided on February 26, 2018
_________________________________________________________________
.
Rakesh Kumar ... Petitioner
Versus
State of Himachal Pradesh Respondent
_________________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
For the petitioner : Mr. Romesh Verma, Advocate.
For the respondent : Mr. Dinesh Thakur, Additional
Advocate General with Mr. Raju
Ram Rahi, Deputy Advocate
r General.
ASI Virender Bharwal and HC Rohit
Bhardwaj IO, Police Station,
Chopal, District Shimla, HP.
_________________________________________________________________
Sandeep Sharma, Judge (oral):
Apprehending arrest in FIR No. 12 of 2018 dated 28.1.2018 under Section 379 IPC and Sections 32 and 33 of the Indian Forest Act registered at Police Station, Chopal, District Shimla, Himachal Pradesh, bail petitioner has approached this Court by way of instant bail petition filed under Section 438 CrPC, praying therein for grant of pre-arrest bail.
2. Sequel to order dated 30.1.2018, whereby bail petitioner was ordered to be enlarged on interim bail in the event of his arrest, ASI Virender Bharwal and HC Rohit Bhardwaj, Police Station, 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 2Chopal have come present with the status report/record. Mr. Dinesh Thakur, learned Additional Advocate General has also made available status report prepared on the basis of investigation .
carried out by the investigating agency. Record perused and returned.
3. Perusal of record /status report reveals that FIR detailed herein above came to be registered against the bail petitioner on 28.1.2018 at the behest of complainant namely Parshotam, Range Officer, Sarahan, who alleged that on 28.1.2018, he alongwith Divisional Forest Officer Shimla inspected the store of the bail petitioner and found that the bail petitioner without having any valid permit/permission from the Forest Department, had illegally and unauthorisedly stored cedar wood oil. Allegedly, the bail petitioner had stored 13 barrels/drums containing 200 litres of oil each and 15 cans containing 35 litres each of cedar wood oil.
During search, approximately 3325 litres of cedar wood oil was found stored in the store of the bail petitioner, without having any licence and permission, as such, a case under Sections 32 and 33 of the Indian Forest Act and Section 379 IPC came to be registered against the bail petitioner.
4. Mr. Romesh Verma, learned counsel representing the bail petitioner, while referring to the record/ status report vehemently argued that no case is made out against the bail petitioner, who at the relevant time was having valid licence to extract and store ::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 3 cedar wood oil. Mr. Verma further contended that it is quite evident from the record/status report that bail petitioner had valid permission from the Forest Department till the year 2015 to .
extract and store cedar wood oil as such, no case, if any, under Section 379 IPC is made out against the petitioner. Learned counsel for the petitioner, while inviting attention of this Court to the communication placed on record alongwith bail petition strenuously argued that on 20.12.2013, Divisional Forest Officer, Chopal Forest Division, District Shimla, had specifically verified the quantity of cedar wood oil lying in the store of the bail petitioner. While referring to annexure P-2, i.e. communication dated 31.3.2014, learned counsel representing the petitioner contended that licence of the petitioner was renewed from time to time and same was valid till 31.3.2015. While praying for grant of pre-arrest bail, learned counsel contended that bail petitioner has already joined investigation and at this stage, nothing is required to be recovered from him. Learned counsel further contended that another co-accused namely Rama Nand has already been enlarged on bail by the court of learned Chief Judicial Magistrate, Chopal and as such, bail petitioner also deserves to be enlarged on bail.
Learned counsel for the bail petitioner further contended that the bail petitioner is a local resident of the area and he shall always remain available for investigation and trial and there is no likelihood of his fleeing from justice and as such, his freedom ::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 4 cannot be curtailed till the time guilt, if any, of the bail petitioner is proved in accordance with law.
5. Mr. Dinesh Thakur, learned Additional Advocate General, .
while refuting /opposing aforesaid prayer having been made by the learned counsel representing the petitioner, strenuously argued that it has clearly come in the investigation that bail petitioner had been indulging in illegal trade of cedar wood oil and he without having any valid permit, extracted cedar wood oil and thereafter sold the same in the market causing huge loss to the State Exchequer. While refuting the contention of the learned counsel representing the petitioner that bail petitioner was having valid licence, learned Additional Advocate General contended that it has specifically come in the investigation that in the year 2005, a decision was taken not to grant any permit for extraction of cedar wood oil and its sale as such, role of the other forest officials, who illegally issued permit in favour of the bail petitioner, is yet to be ascertained. Mr. Thakur further contended that bail petitioner is an influential person, who, in connivance with the forest officials succeeded in procuring illegal permit from the Forest Department and in the event of his being enlarged on bail, he may influence/tamper with prosecution evidence, as such, he does not deserve to be shown any leniency at this stage. Though, Mr. Thakur, on the instructions of the Investigating Officer, fairly admitted that bail petitioner has joined the investigation and at ::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 5 this stage, nothing is required to be recovered from him but he categorically stated that record pertaining to previous years is yet to be recovered from the bail petitioner. Mr. Thakur, Additional .
Advocate General, while admitting that accused namely Rama Nand has been enlarged on bail, contended that it has no connection, if any, with the present case.
6. I have heard the learned counsel for the parties and gone through the record carefully.
7. After having carefully gone through the record/status report, there appears to be considerable force in the arguments of learned counsel for the petitioner that the bail petitioner had been registered government contractor. As per investigation, record of Forest Division, Chopal was verified, perusal whereof clearly revealed that bail petitioner was having licence/permit till 31.3.2015. Though the investigation reveals that the Forest Department vide communication dated 18.1.2005 had decided not to grant any licence/permit for extraction and sale of cedar wood oil but the fact remains that permit in this regard was issued in favour of the petitioner for the year 2014-15 as is evident from the record itself. As per record, 21 export permits were issued by Forest Department for extraction of cedar wood oil after issuance of aforesaid communication dated 18.1.2005 and in this regard quantity of 2249.9 quintals of cedar wood oil was also shown in the record lying in the store of bail petitioner.
::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 68. Though, this Court after having perused status report finds substantial force in the arguments of the learned Additional Advocate General that there is variation in the quantity of cedar .
wood oil lying in the store of the bail petitioner but this Court can not lose sight of the fact that it stands duly established on record that bail petitioner was having valid licence till 31.3.2015.
Similarly, communication dated 20.12.2013, annexure P-1 issued by Divisional Forest Officer, Chopal Forest Division further reveals that bail petitioner had 58.50 quintals of cedar wood oil in his stock at Depot namely Tangrara and 49.95 quintals at Depot Dogra Nala. Apart from above, there was 85 quintals of cedar wood oil in Depot at Lingzar.
9. Leaving everything aside, this Court was unable to lay its hand on any document/material adduced on record by the investigating agency suggestive of the fact that complaint, if any, was ever received by investigating agency qua theft or fresh extraction of cedar wood oil by the bail petitioner.
10. Similarly, it is not understood that once decision was taken in the year 2005 by the Forest Department that no more permits would be issued for extraction of cedar wood oil, why action was not taken against the bail petitioner in the year 2013, when stock was verified by the Divisional Forest Officer. If no permit was issued to the bail petitioner after the year 2005, there was no occasion to verify the stock in the year 2013.
::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 711. This Court, after having carefully perused communication dated 31.3.2014, annexure P-2, which has not been denied by the investigating agency, has reasons to believe that bail petitioner .
was having valid licence till 31.3.2015 to extract and store cedar wood oil.
12. Interestingly, there is no mention, if any, in the FIR with regard to fresh extraction/ sale, if any, made by the bail petitioner, after 31.3.2015. Though, aforesaid aspect of the matter is to be considered and decided by the trial Court on the basis of material adduced on record by the investigating agency, but this Court after having carefully perused material made available on record sees no reason for custodial interrogation of bail petitioner, who otherwise has joined investigation, as has been fairly admitted by the learned Additional Advocate General.
13. It has been repeatedly held by the Hon'ble Apex Court that freedom of an individual is of utmost importance and same can not be allowed to be curtailed for indefinite period, especially when guilt of the bail petitioner is yet to be proved in accordance with law.
14. By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that object of bail is to secure the appearance of the ::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 8 accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of .
Investigation (2012)1 Supreme Court Cases 49; has been held as under:-
"The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 9
15. Law with regard to grant of bail is now well settled. The Apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694, while relying upon .
its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, laid down the following parameters for grant of bail:-
"111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 10
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or the other offences.
.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in 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 an order of bail." (Emphasis supplied) ::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 11
16. Hon'ble Apex Court, in Sundeep Kumar Bafna versus State of Maharashtra (2014)16 SCC 623, has held as under:-
"8. Some poignant particulars of Section 437 CrPC .
may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being "brought before a Court", the present provision postulates the accused being "brought before a Court other than the High Court or a Court of Session" in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh vs State( Delhi Admn) (1978) 1 SCC 118, there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts. The Legislature could have easily enunciated, by use of exclusionary or exclusive terminology, that the superior Courts of Sessions and High Court are bereft of this jurisdiction or if they were so empowered under the Old Code now stood denuded thereof. Our understanding is in conformity with Gurcharan Singh, as perforce it must. The scheme of the CrPC plainly provides that bail will not be extended to a person accused of the commission of a non-bailable offence punishable with death or imprisonment for life, unless it is apparent to such a Court that it is incredible or beyond the realm of reasonable doubt that the accused is guilty. The enquiry of the Magistrate placed in this position would be akin to what is envisaged in State of Haryana vs Bhajan Lal, 1992 (Supp)1 SCC 335, that is, the alleged complicity of the accused should, on the factual matrix then presented or prevailing, lead to the overwhelming, incontrovertible and clear conclusion of his innocence. CrPC severely curtails the powers of the Magistrate while leaving that of the Court of Session and the High Court untouched and unfettered. It appears to us that this is the only logical conclusion that can be arrived at on a conjoint consideration of Sections 437 and 439 of the CrPC. Obviously, in order to complete the picture so far as concerns the powers and limitations thereto of the Court of ::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 12 Session and the High Court, Section 439 would have to be carefully considered. And when this is done, it will at once be evident that the CrPC has placed an embargo against granting relief to an accused, (couched by us in the negative), if he is not .
in custody. It seems to us that any persisting ambivalence or doubt stands dispelled by the proviso to this Section, which mandates only that the Public Prosecutor should be put on notice. We have not found any provision in the CrPC or elsewhere, nor have any been brought to our ken, curtailing the power of either of the superior Courts to entertain and decide pleas for bail. Furthermore, it is incongruent that in the face of the Magistrate being virtually disempowered to grant bail in the event of detention or arrest without warrant of any person accused of or suspected of the commission of any non-bailable offence punishable by death or imprisonment for life, no Court is enabled to extend him succour. Like the science of physics, law also abhors the existence of a vacuum, as is adequately adumbrated by the common law maxim, viz. 'where there is a right there is a remedy'. The universal right of personal liberty emblazened by Article 21 of our Constitution, being fundamental to the very existence of not only to a citizen of India but to every person, cannot be trifled with merely on a presumptive plane. We should also keep in perspective the fact that Parliament has carried out amendments to this pandect comprising Sections 437 to 439, and, therefore, predicates on the well established principles of interpretation of statutes that what is not plainly evident from their reading, was never intended to be incorporated into law. Some salient features of these provisions are that whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable offence and consequently arrested or detained without warrant, Section 439 empowers the Session Court or High Court to grant bail if such a person is in custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word 'custody' the same or closely similar meaning and content as arrest or detention. Furthermore, while ::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 13 Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of .
giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of 'Committal of cases to the Court of Session' because of a possible hiatus created by the CrPC."
17. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
18. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 14
(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.
19. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual can not be curtailed for indefinite period, especially when his guilt has not been proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under:
2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception.
Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a ::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 15 necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be considered is whether the accused was .
arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.
::: Downloaded on - 27/02/2018 22:55:55 :::HCHP 1620. In view of above, interim order dated 30.1.2018, is made absolute, subject to the petitioner furnishing fresh bail bonds in the sum of `5,00,000/- (`Five Lakh) with a local surety in the like .
amount, to the satisfaction of the Investigating Officer concerned, besides following conditions:
(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) He shall not leave the territory of India without the prior permission of the Court.
(e) He shall surrender passport if any held by him.
21. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
22. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone.
The petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma) Judge February 26, 2018 (vikrant) ::: Downloaded on - 27/02/2018 22:55:55 :::HCHP