Himachal Pradesh High Court
__________________________________________________________ vs State Of Himachal Pradesh on 4 April, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr.MP(M) No.479 of 2024
Decided on: 4th April, 2024
__________________________________________________________
Mohinder Kumar Jain ....Petitioner
.
Versus
State of Himachal Pradesh ....Respondent
Coram
Hon'ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting?
For the petitioner : Mr. Manoj Pathak, Advocate.
For the respondents: Mr. Tejasvi Sharma,
Additional Advocate General.
Ranjan Sharma, Judge (Oral)
The petitioner-accused (Mohinder Kumar Jain) has come up before this Court, seeking bail under Section 438 of the Code of Criminal Procedure, originating from FIR No.7 of 2011, dated 21/03/2011, under Section 8 and 10 of Prevention of Corruption Act, 1988 and under Section 120 B of the Indian Penal Code, registered at Police Station (SV & ACB) Shimla, Himachal Pradesh.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 19/04/2024 20:32:46 :::CIS -2-2. FACTUAL MATRIX:
The case set up by the bail petitioner-
accused (Mohinder Kumar Jain) is that a complaint .
was submitted to State Vigilance and Anti Corruption Bureau, Shimla through one Sh. Vinod Mittal proprietor of Industry Jharmajri Baddi, in connivance with Sh.
Vivek Dogra, resident of Lower Bazar Shimla, who is a property dealer. It is also averred in the bail petition that Sh. Vinod Mittal and Vivek Dogra, as referred to above, used to influence people, so as to ensure granting of permission under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972. It is averred in Para 2 of the bail petition that Vinod Mittal had obtained money from various parties, for facilitating permission under Section 118 of the Act by stating that he will manage to ensure that permission at the instance of an official who ::: Downloaded on - 19/04/2024 20:32:46 :::CIS -3- was deployed as Principal Secretary Revenue, in the Government at that time.
2(i). The matter in pursuance to the FIR .
was investigated and the voice recording and other material was scrutinized. In the bail petition, the petitioner has given the undertaking that he shall participate in investigation as and when called. It is also averred in the bail petition that the challan in pursuance to the FIR which was registered in the year 2011 has been filed before the learned Special Judge (Forest), Shimla.
It is further averred in Para 8 of the bail petition that co-accused namely Vinod Mittal and Vivek Dogra and the alleged officer involved therein have been granted bail by the Coordinate Bench of this Court in Cr.MO(M) No. 424 of 2020 alongwith Cr.MP(M) Nos. 448 of 2020 and 17776 of 2020, dated 30.03.2021, Annexure A1) annexed with the petition.::: Downloaded on - 19/04/2024 20:32:46 :::CIS -4-
2(ii). In this background, the bail petitioner has further averred that he is innocent and has been falsely implicated and he has no connection .
with the alleged offence. The conduct of the bail petitioner has also remained unblemished throughout without there being any criminal record.
3.
r to STAND OF STATE AUTHORITIES.
Upon issuance of notice on 15.03.2024, this Court directed the respondents to file the Status Report and the interim pre-arrest bail was granted in favour of the bail petitioner. As a sequel to the orders dated 15.03.2024 the respondent-State Authorities have filed the Status Report dated 04.04.2024 during the course of hearing in the aforesaid case. The stand of the respondent in the Status Report reads as under:-
"That the present case FIR No. 7/2011 dated 21.03.2011 under Section 8 and 10 of the PC Act, 1988 and Section 120 B of the Indian Penal Code has been registered PS, SV & ACB, Shimla, District Shimla, H.P. Final report under Section 173 Cr.P.C ::: Downloaded on - 19/04/2024 20:32:46 :::CIS -5- as Challan has been prepared on 23.03.2023 for the punishable under Section 8 of PC Act, 1988 and 120-B IPC against accused Shri Vinod Mittal S/o Late Shri Phool Chand Mittal R/o H.No. 15, GHS-25 Sector 20, Panchkula, Haryana, under Section 8 of .
PC Act, 1988 against Shri Vivek Dogra S/o Shri Narender Dogra, R/o Lower Bazar Shimla and under Section 8 of PC Act and 120-B IPC against Shri M.K.Jain, Prop. Of M/s Chelsea Resorts Pvt. Ltd. The final report as charge sheet under Section 173 Cr.P.C has been prepared against the aforementioned accused persons. However, due to death of one accused, late Shri Partha Sarthi Mitra, the then FC-cum-Pr. Secretary (Revenue) to the Government of H.P., he could not be prosecuted for r the offence committed by him in the Court of law.
Final report alongwith relevant record was presented before the Ld. Special Judge (Forest), District Shimla through R/C No. 3/2023 dated 31.03.2023. The matter is now listed before the learned Special Judge (Forests), District Shimal for the service of accused, namely, M.K.Jain on 08.04.2024."
4. Heard Mr.Manoj Pathak, learned counsel for the petitioner and Learned State Counsel Mr. Tejasvi Sharma.
5. Before proceeding with the discussion on the instant bail application, it is relevant to take note of the provisions of Section 438 of Cr.P.C. and Sections 8 and ::: Downloaded on - 19/04/2024 20:32:46 :::CIS -6- 10 of the Prevention of Corruption Act read with Section 120 B of the Indian Penal Code. which read as under:-
"Section 438 Cr.P.C.:
.
Direction for grant of bail to person apprehending arrest:
(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, r namely--
(i) the nature and gravity of the
accusation;
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice; and
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail;
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of ::: Downloaded on - 19/04/2024 20:32:46 :::CIS -7- a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
(1A) Where the Court grants an interim order .
under Sub-Section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
(2) When the High Court or the Court of Session makes a direction under subsection (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including--
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required;
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer;
::: Downloaded on - 19/04/2024 20:32:46 :::CIS -8-(iii) a condition that the person shall not leave India without the previous permission of the Court;
(iv) such other condition as may be imposed under Sub-Section (3) of section .
437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under Sub-Section (1).
(4) Nothing in this section shall apply to any case involving the arrest of any person on accusation of having committed an offence under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code."
Section 8 of the Prevention of Corruption Act, 1988
8. Offence relating to bribing of a public servant.--
(1) Any person who gives or promises to give an undue advantage to another person or persons, with intention--
(i) to induce a public servant to perform improperly a public duty; or
(ii) to reward such public servant for the improper performance of public duty, shall be punishable with imprisonment ::: Downloaded on - 19/04/2024 20:32:46 :::CIS -9- for a term which may extend to seven years or with fine or with both:
Provided that the provisions of this section shall not apply where a person is compelled to give such undue advantage:
.
Provided further that the person so compelled shall report the matter to the law enforcement authority or investigating agency within a period of seven days from the date of giving such undue advantage:
Provided also that when the offence under this section has been committeed by commercial organisation, such commercial organisation shall be r punishable with fine.
Section 10 of the Prevention of Corruption Act, 1988
10. Person in charge of commercial organisation to be guilty of offence.--
Where an offence under section 9 is committed by a commercial organisation, and such offence is proved in the court to have been committed with the consent or connivance of any director, manager, secretary or other officer shall be of the commercial organisation, such director, manager, secretary or other officer shall be guilty of the offence and shall be liable to be proceeded against and shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine.
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Section 120B of the Indian Penal Code.
120B. Punishment of criminal conspiracy.--
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with .
death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, r or with fine or with both.
6. In the backdrop of the statutory provisions referred to above, this Court will re-miss in case the mandate of the Hon'ble Supreme Court, governing the principles recalling anticipatory bail or regular bail, as the case may be are not taken care of.
7. Notably, the claim of an accused for bail [be it anticipatory or regular] is to be examined/tested within the parameters prescribed of the Code of Criminal Procedure and also the broad parameters mandated ::: Downloaded on - 19/04/2024 20:32:46 :::CIS
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by the Hon'ble Supreme Court regulating grant of bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus .
Sudarshan Singh (2002) 3 SCC 598 ; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528 ;
Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496 ; reiterated in P. Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24, mandating that the bail {anticipatory or regular} is to be granted where the case is frivolous or groundless and no prima facie or reasonable grounds exists which lead to believe or point out towards accusation ; and these parameters for regular bail have been reiterated in Sushila Aggarwal versus State-NCT Delhi, (2020) 5 SCC 01.
8. While dealing with the case for grant of regular bail, the three judges bench of Hon'ble Supreme Court, after reiterating the broad parameters, has held in Deepak Yadav versus State of Uttar Pradesh, (2022) 8 ::: Downloaded on - 19/04/2024 20:32:46 :::CIS
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SCC 559, in Para 25 that the nature of the crime has a huge relevancy, while considering claim for bail.
8(i). In the case of Ansar Ahmad versus State of .
Uttar Pradesh, 2023 SCC Online SC 974, the Hon'ble Supreme Court had expanded the horizon of the broad parameters, which are to be primarily taken into account, for considering the claim for regular bail or anticipatory bail as under:
11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that r the Court while granting bail is not required to give detailed reasons touching the merits or de-
merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, in our considered opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the well-known parameters including:
(i) The nature of the accusation weighing in the gravity and severity of the offence;
(ii) The severity of punishment;
(iii) The position or status of the accused, i.e. whether the accused can exercise influence on the victim and the witnesses or not;
(iv) Likelihood of accused to approach or try to approach the victims/witnesses;::: Downloaded on - 19/04/2024 20:32:46 :::CIS
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(v) Likelihood of accused absconding from proceedings;
(vi) Possibility of accused tampering with evidence;
(vii) Obstructing or attempting to obstruct the .
due course of justice;
(viii) Possibility of repetition of offence if left out on bail;
(ix) The prima facie satisfaction of the court in support of the charge including frivolity of the charge;
(x) The different and distinct facts of each case and nature of substantive and corroborative evidence.
12. We hasten to add that there can be several other r relevant factors which, depending upon the peculiar facts and circumstances of a case, would be required to be kept in mind while granting or refusing bail to an accused. It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket formula for exercising the discretionary jurisdiction vested in a Court under Sections 438 and 439 respectively of the CrPC, as the case may be.
8(ii). In CBI versus Santosh Karnani, (2023) 6 SCALE 250, the Hon'ble Supreme Court has reiterated the illustrative time tested broad parameters which are required to be taken into account while considering the prayer for bail ; which have recently been reiterated by the Hon'ble Supreme Court in the case of State of ::: Downloaded on - 19/04/2024 20:32:46 :::CIS
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Haryana versus Dharamraj, 2023 SCC OnLine SC 1085.
9. In normal parlance, the principle of law is that .
bail is a rule and jail is an exception. However, this Court is conscious of the fact that the power under Section 438 is an extraordinary power and the same has to be exercised sparingly. It is trite law that while considering the prayer for bail {pre-arrest bail or regular bail], the formation of prima facie opinion is to gathered as to whether reasonable grounds exist pointing towards accusation or whether the accusation is frivolous and groundless with the object of either injuring or humiliating or where a person has falsely been roped in the crime needs to be tested in the background of the self-imposed restrains or the broad parameters mandated by law, as referred to herein above.
10. This Court is also conscious of the fact that as per the mandate of law, in Criminal Appeal No 3840 of 2023, titled as Saumya Churasia versus Directorate ::: Downloaded on - 19/04/2024 20:32:46 :::CIS
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of Enforcement, decided on 14.12.2023, while considering the prayer for bail, though a Court is not required to weigh the evidence collected by the .
Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation, the nature of evidence collected in support thereof, the severity of punishment prescribed for alleged offences, the character of the accused, the circumstances which are peculiar to the accused, the reasonable possibility of securing the presence of the accused during trial, reasonable apprehension of the witnesses being tampered with, the large interests of the public/state.
In this background, while testing the claim for bail, the Court is required to form a prima-facie opinion in the context of the broad-parameters referred to above, without delving into the evidence on merits, as it may tend to prejudice the rights of the accused as well as the prosecution.
ANALYSIS OF CLAIM OF INSTANT CASE:
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11. After taking into account the entirety of the facts and circumstances of the instant case, the statutory provisions of the mandate of the Hon'ble .
Supreme Court, as referred to above, this Court is of the considered view that the bail petitioner, namely Mohinder Kumar Jain, is entitled to be enlarged on bail by making the interim orders dated 15.03.2024 absolute, for the following reasons:
11(i). A perusal of the FIR and the status report reveal that neither any prima facie case nor any reasonable grounds exist to believe the prima facie case against the bail petitioner [ Mohinder Kumar Jain], referred to above.
11(ii). Mere accusation in F.I.R-Status Report that the bail petitioner was in touch with other co-accused, namely, Vinod Mittal and Vinod Dogra and these co-
accused were alleged to have inducing people for securing the land permission under Section 118 of the H.P. Tenancy and Land Reforms Act, 1972 through the ::: Downloaded on - 19/04/2024 20:32:46 :::CIS
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intervention of Mr. Parthasrthi Mitra (now died), former Financial Commissioner - cum - Principal Secretary (Revenue) to the Government of Himachal Pradesh, .
cannot be the basis to curtailing the liberty of the bail petitioner under Article 21 of the Constitution of India, when, there is no material to show that the bail petitioner had even given any promise or given any undue advantage to another person and moreso, when, the existence or non-existence of the pre-requisites of Sections 8 and 10 of the Prevention of Corruption Act, is a matter to be proved during the trial.
11(iii). In the instant case, F.I.R No. 7 of 2011 dated 21.03.2011 was registered about 13 years back, therefore, the bail petitioner [ Mohinder Kumar Jain ] is entitled for enlargement of bail, in view of the delayed investigation, as referred to above.
11(iv). Even the Status Report reveals that investigation with respect to F.I.R. No. 7 of 2011 stands completed and the Final Report/Challan has been ::: Downloaded on - 19/04/2024 20:32:46 :::CIS
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presented before the learned Sessions Judge (Forests) on 31.03.2023. Moreover, the Learned Sessions Judge (Forests) has issued notice to the bail petitioner for .
commencement of trial for 08.04.2024. In these circumstances, once the trial has begun, therefore, the accusation against the bail petitioner, if any and its veracity shall be tested during the course of trial.
11(v). Even after the passing of the interim bail orders by this Court on 15.03.2024, the bail petitioner has joined the investigation and is cooperating with the police authorities. In these circumstances, this Court is of the considered view that the petitioner deserves to be enlarged on bail.
11(vi). Moreover, once there is no material on record that the bail petitioner is likely to either flee from the country or shall not face the trail or shall tamper with the evidence - witnesses or shall cause any inducement, threat or promise to person or person(s) acquainted with the case, therefore, in absence of ::: Downloaded on - 19/04/2024 20:32:46 :::CIS
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any such apprehension, this Court is inclined to make bail absolute in case of the bail petitioner.
12. In view of the above discussion, and in the .
peculiar facts of the instant case, the prayer of the petitioner [Mohinder Kumar Jain] for enlargement on bail, is accepted; and the order dated 15.03.2024, is made absolute.
13. The observations made in this judgment shall not be construed in any manner as an indictive of findings, for the purposes of investigation and the proceedings thereafter, including the trial, if any against either of the parties herein.
In aforesaid terms, the instant petition and all the pending miscellaneous application(s), if any, shall also stand disposed of, accordingly.
(Ranjan Sharma) Judge April 4, 2024 (tm) ::: Downloaded on - 19/04/2024 20:32:46 :::CIS