Punjab-Haryana High Court
Shivangini Mahendroo & Others vs State Of Haryana And Another on 27 February, 2013
Author: Ranjit Singh
Bench: Ranjit Singh
CRIMINAL MISC. M NO.5111 OF 2013 (O&M) :1:
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
DATE OF DECISION: FEBRUARY 27 , 2013
Shivangini Mahendroo & others
.....Petitioners
VERSUS
State of Haryana and another
....Respondents
CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH
1. Whether Reporters of local papers may be allowed to see the
judgement?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr.R.S.Cheema, Senior Advocate with
Mr.K.S.Nalwa, Advocate,
for the petitioners.
Mr.Shivendra Swaroop, AAG, Haryana,
for the State.
Mr.Ashok Aggarwal, Senior Advocate with
Mr.K.D.S.Hooda, Advocate,
for respondent No.2.
*****
RANJIT SINGH, J.
Debate about the nature of anticipatory bail and the rules governing the grant thereof having been settled long ago in Gurbaksh Singh Sibbia Versus State of Punjab, (1980) 2 SCC 565, the present case still has been debated by the counsel on those very grounds. Mr.R.S.Cheema, Senior counsel would maintain that this is not an extra-ordinary relief to be invoked in exceptional or rare cases, whereas Mr.Ashok Aggarwal, Senior counsel appearing for CRIMINAL MISC. M NO.5111 OF 2013 (O&M) :2: the complainant, did raise a serious pitch to urge otherwise. There, however, may not be a much need to adjudicate this issue, the same having been recently settled in the case of Siddharam Satlingappa Mhetre Versus State of Maharashtra and others, (2011) 1 Supreme Court Cases 694. Before coming to conflicting stands taken by the respective counsel inviting some hot debate, it may be essential to notice the facts and then recapitulate the considerations, which are to be kept in view while considering the prayer for grant of anticipatory bail.
Three petitioners, who stand summoned under Sections 406, 420, 467, 468 and 120-B IPC by Chief Judicial Magistrate, Gurgaon pursuant to the FIR No.32 dated 6.2.2008 registered against them, have filed this petition to seek pre-arrest bail. Their prayer for anticipatory bail has been rejected vide an impugned order dated 30.1.2013 passed in 18 different FIRs. These FIRs have been registered at the instance of Mr.R.K.Anand, who is the Managing Director of respondent No.2. The petitioners would allege that these FIRs have been registered by misusing the provisions of Section 156 (3) Cr.P.C. To highlight the misuse of this provision, reference is made to the cancellation reports submitted by the Investigating Officer on 2.11.2008, which remained pending for consideration for more than two years. It is alleged that 19 protest petitions were filed by complainant Mr.R.K.Anand on 7.3.2011 and 8.3.2011, which is nearly after 3 years of the date of cancellation report, i.e., 2.11.2008. The Chief Judicial Magistrate, Gurgaon has decided to summon the petitioners while rejecting the cancellation reports and that is how CRIMINAL MISC. M NO.5111 OF 2013 (O&M) :3: they are before this court with a prayer for grant of pre-arrest bail once their prayer for anticipatory bail is rejected by the Addl.Sessions Judge, Gurgaon.
Petitioner No.1, who is daughter of Anand Mahindru and niece of Ashok Mahindru, who are the accused persons in this FIR, is allegedly named and blamed in this FIR as she happened to send one email dated 17.12.2005 on behalf of her uncle to MD of respondent No.2 concern. To highlight her innocence, it is averred that petitioner No.1 at that time was a student and has been falsely implicated in the FIRs only on the basis of this email. She otherwise has statedly completed her Bachelor Degree in 2007-08 in Biotechnology and Chemistry from Indiana University, USA and is a Master of Science (in Biotechnology). She is presently pursuing her Ph.D Degree in alternative fuel.
The petitioner No.2 is 62 years old and is working in the Legal Department of M/s Advance Surfactants India Ltd., a company manufacturing detergents. Before joining the present assignment, he was working as Assistant in Education Ministry and thereafter worked as Manager in Indian Bank. He has joined Advance Group of Companies in 1998 and is presently working in one of the companies, i.e, Advance Surfactants India Ltd. He is also made accused in the present FIRs as he sent an email on 17.12.2005 on behalf of Ashok Mahindru to respondent No.2. It is alleged that this email contained attachment of certain drafts documents, like Ozo Agreement, Title Report, Ozo Buyers Agreement and Ozo Allotment application received from Advocate Shri R.C.Beri. CRIMINAL MISC. M NO.5111 OF 2013 (O&M) :4:
Petitioner No.3 is a Chartered Accountant and before joining the Advance Group of Companies, was working as a Finance Controller with the Indiana Group of Companies. He joined M/s Advance Group of Companies in January, 1996 as a Senior Manager, taxation and company affairs. It is stated that he had nothing to do with the affairs of Ozo Project and had left the company as a General Manager in July, 2007.
The dispute relates to M/s Champak Textiles Private Limited, whose Directors are Ashok Mahindru and Anand Mahindru. This Company contemplated development and construction of multi storeyed commercial complex on the land measuring 2545 sq.yards owned by it in Shah Industrial Estate, Plot No.1, Veera Desai Road, Andheri (West), Mumbai. The company was at the final stage of entering into an agreement with M/s Parshavnath Developers Limited for developing the land, when complainant Mr.R.K.Anand and Mr.Vineet Handa (who is also accused in the FIRs and is a cousin of Shri Ashok Mahindru) approached M/s Champak Textiles through its Director with the proposal that it would be advantageous if the property was developed by forming a new company. Both Mr.R.K.Anand and Mr.Vineet Handa assured their cooperation and assistance in developing and marketing and the sale of the project. M/s Ozo Media Estate Limited accordingly was floated on 30.12.2005. Ashok Mahindru was appointed as Chairman and Mr.Vineet Handa as Managing Director.
Mr.R.K.Anand circulated a letter to his clients giving information regarding Mumbai Project known as `Ozo Towers' and CRIMINAL MISC. M NO.5111 OF 2013 (O&M) :5: invited applications for registration for allotment of spaces. Mr.R.K.Anand, through respondent No.2 got signed applications for registration of allotment of commercial spaces in proposed multi storeyed building in Mumbai from the intending allottees/investors and collected cheques for registration amount, which were deposited with M/s Ozo media. It is alleged that Mr.R.K.Anand, thus, collected a sum of `13,11,20,188/- against total booking of commercial spaces aggregating to 48500 sq.feet. It is alleged that registration for booking was not at uniform rates. It is further alleged that Mr.R.K.Anand himself circulated a letter dated 24.12.2005 with a pre- launch price of `8000/-per square feet and launch price of `9,000/- per sq.feet. He himself, however, has done investment at amazingly lower rate of `3050/- per square feet. Respondent No.2 otherwise entered into seven identical agreements on 28.2.2006.
Another company M/s Ozo Marketing Private Limited was floated by the Promoters and Directors of M/s Ozo Media and Mr.R.K.Anand was appointed as CEO by Mr.Vineet Handa with a remuneration of `5.00 lacs per month. This was done even when the company was not in existence. It is accordingly alleged that Mr.R.K.Anand and Mr.Vineet Handa co-accused of the petitioners, who were looking after the day to day affairs of M/s Ozo Media. Mr.Vineet Handa allegedly signed all the cheques on behalf of M/s Ozo Media. It is further alleged that on account of the colluded partners, Mr.Vineet Handa and Mr.R.K.Anand, later had booked spaces for himself and his family members and, thus, the company M/s Ozo Media suffered a loss of `5,22,02,500/-. When CRIMINAL MISC. M NO.5111 OF 2013 (O&M) :6: Mr.R.K.Anand was confronted by the Chairman with for these heavy losses, he is alleged to have prepared some underwriting letters in favour of various companies owned and controlled by him, which are stated to be forged and fabricated one. He is also alleged to have withdrawn `2.50 crores from M/s Ozo Media vide cheque No.156002 dated 27.1.2006 issued by Mr.Vineet Handa. This fraud came to light during audit. About this, Mr.Vineet Handa was questioned. They both prepared an anti- dated agreement to sell between M/s Convenience Enterprises and M/s Ozo Media. This agreement, however, was cancelled and same was accepted by Mr.R.K.Anand without refunding `2.50 crores. This was ultimately refunded realising that on a complaint dated 27.11.2007 filed by M/s Ozo Media, Commissioner of Police, Gurgaon started an enquiry.
Allegation of withdrawal of some other money is also made against Mr.R.K.Anand. Petitioners would allege that Mr.R.K.Anand and Mr.Vineet Handa siphoned off and misappropriated the funds of M/s Ozo Media. Mr.R.K.Anand on his part got a legal notice issued for appointment of an arbitrator. Ashok Mahindru is also alleged to have filed a complaint with the police at Police Station DLF, Phase-II, Gurgaon and as a counter blast to this, Mr.R.K.Anand in collusion with Mr.Vineet Handa filed three complaints in the Court of Chief Metropolitan Magistrate, Tis Hazari, New Delhi under Sections 200 read with Section 156(3) of the Code of Criminal Procedure seeking registration of FIR against M/s Ozo Media and 16 others including the petitioners.
It is alleged that as per the plans, Mr.Vineet Handa, who CRIMINAL MISC. M NO.5111 OF 2013 (O&M) :7: was a colluding partner of Mr.R.K.Anand was also impleaded as an accused simply with a view to defeat justice to the petitioners. The Metropolitan Magistrate dismissed all the three complaints on 28.5.2007. In the order it is observed that the complaint does not disclose any criminal offence and the dispute between the parties is purely of civil nature. It is then that between 23.5.2007 to 8.6.2007, Mr.R.K.Anand filed 16 similar complaints under Section 156(3) Cr.P.C. in the Court of Illaqa Magistrate, Gurgaon. 10 complainants are relations and companies of Mr.R.K.Anand, including respondent No.2 and 8. Other complainants are friends, neighbourers and investors of Mr.R.K.Anand. 14 out of these 16 complaints have been filed through Mr.R.K.Anand and two others through Mr.Virender Kohli, who is nephew of Mr.R.K.Anand These are the complaints, which have led to 16 different orders directing registration of FIRs.
Mr.R.K.Anand had also moved the High Court of Delhi against the order passed by Metropolitan Magistrate, Delhi for setting aside the order dated 11.7.2007. The High Court of Delhi remanded the matter for fresh consideration. M/s Ozo Media approached the Hon'ble Supreme Court against this order, but the SLP was dismissed. Metropolitan Magistrate, Delhi treated the complaints as private complaints and gave opportunity to the complainant to lead pre-summoning evidence. Complainant sought repeated adjournments and in the meantime approached the Hon'ble Supreme Court for transfer of the complaints to the Court of CJM, Gurgaon. Hon'ble Supreme Court transferred three complaints to CJM, Gurgaon on 4.1.08, who passed a fresh order under Section 156(3) CRIMINAL MISC. M NO.5111 OF 2013 (O&M) :8: Cr.P.C. directing the registration of three more FIRs in the year 2008.
M/s Ozo Media and others approached this High Court through CWP No.9403 of 2007 making multiple prayers including a prayer for clubbing all the cases arising out of similar complaints into one case and for investigation into the conduct of parties in various complaints and FIRs. The Division Bench of this Court disposed of the said writ petition while observing that admittedly the 16 complaints and also the complaints filed by the petitioner therein arose from a common set of facts and so as to avoid different Investigating Officers arriving at different conclusions, the parties reached a consensus for investigation of the cases by Shri Satinder Kumar Gupta, IPS, DCP, Gurgaon (East). Despite this, Mr.R.K.Anand filed 11 petitions on behalf of the investors seeking transfer of investigation to CBI in the 16 FIRs registered on the basis of order passed under Section 156(3) Cr.P.C. These 11 petitions were dismissed by this Court on 28.11.2007 observing that the petitioners in 11 petitions even though were not impleaded as respondents in CWP No.9403 of 2007 by M/s Ozo Media but had admittedly intervened and were heard. Since the Division Bench had appointed Shri Satinder Kumar Gupta, IPS as the Investigating Officer on the basis of consensus emerging between the parties, the prayer for transfer of the case to CBI was declined by this Court.
Another complaint was filed on 27.11.2007 with the Commissioner of Police, Gurgaon by Mr.R.K.Anand and Mr.Vineet Handa. M/s Ozo Media otherwise informed all the investors in terms of Clause 18 of the Agreement that the agreement stood terminated CRIMINAL MISC. M NO.5111 OF 2013 (O&M) :9: as the space could not be allotted within a period of 12 months. In the light of this, company was liable to refund the principal amount with the interest of 12% per annum. Company requested all the investors to come forward and take the amount with interest. In this manner, a sum of `6,09,87,372/-, which includes interest of ` 90,81,122/- have been returned.
Shri Satinder Kumar Gupta, DCP conducted detailed investigation in all the remaining 18 FIRs and opined that no criminal case is made out against the petitioners and that the dispute was purely civil in nature. The IO/SHO Police Station, Gurgaon submitted a cancellation report on 2.11.2008 in the present FIRs. The matter, thus, remained pending before Magistrate for consideration of cancellation report for nearly three years. It was transferred to CJM, when Mr.R.K.Anand submitted protest petition on 7.3.2011 in all the 18 cases. The CJM through a common order has rejected the cancellation report in all the 18 FIRs and has summoned the petitioners. The petitioners having been so summoned, thus, have approached this Court for grant of pre-arrest bail.
By highlighting these facts, Mr.R.S.Cheema would contend with all force at his command that the petitioners are not needed for any investigation for which they are required to be taken in custody. He would question as to what for the petitioners are required to be taken in custody specially in the background that the police after investigation found it to be a case of simple civil dispute between the parties having no criminal liability for which the liberty of the petitioners was required to be curtailed. As per counsel, since no CRIMINAL MISC. M NO.5111 OF 2013 (O&M) : 10 : investigation is pending, the only requirement is to ensure continued presence of the petitioners before the trial for which there is no need to take them in custody. The petitioners are persons of means and there is no likelihood of their evading the trial in any manner.
Mr.Ashok Aggarwal, on the other hand, was equally vehement in his submission that there is no exceptional circumstances to bestow the concession of pre-arrest bail to the petitioners, which is meant to be invoked in exceptional circumstances. The counsel would highlight the conduct of the petitioners where they have failed in their approach to seek quashing of these FIRs when they were saddled with a cost of `50,000/-. As per him, the petitioners are accused of misleading the Court.
Mr.Cheema, on the other hand, would attribute this to the conduct of Mr.Vineet Handa, who though is accused in these FIRs, but is a conspiring partner of the complainant. As per the counsel, he has always preceded the petitioners with a simple aim to put spokes in the the attempt of the petitioners to seek relief in a legal and appropriate manner. Mr.Vineet Handa got all the quashing petitions filed by him dismissed as withdrawn, but still went ahead to approach the Supreme Court where he was saddled with costs of Rs.5.00 lacs. The petitioners would attribute this as a stumbling block for them, who had also approached the court but were confronted with the order passed in the case of Mr.Vineet Handa and, thus, they all have suffered.
Incidentally, the State counsel has not been that vociferous in opposing the bail and he has only urged that the CRIMINAL MISC. M NO.5111 OF 2013 (O&M) : 11 : petitioners have not complied with directions to deposit `50,000/- imposed as a costs while dismissing their quashing petition. Counsel for the petitioners, however, states that the costs have been deposited. Otherwise the very hard opposition to the anticipatory bail has been from the counsel for the complainant.
In fact, there are two difficulties, which Mr.Cheema has to contend with to get the relief of anticipatory bail for the petitioners in this case. Indeed, Mr.Vineet Handa has already approached this Court for seeking pre-arrest bail against the summoning orders, which prayer has been declined on the ground by observing that it is high time he must now appear before the Court and seek a regular bail. To distinguish the case of the petitioners, Mr.Cheema would highlight the facts in the present case and also the observations of this Court in the petition filed by the petitioners to seek quashing of these FIRs. As per the counsel, Mr.Vineet Handa was the Managing Director of M/s Ozo Media, whereas the petitioners had no such role or responsibility. The counsel accordingly would question if it would be fair to take the petitioners in custody for just forwarding an email. Petitioner No.1 concededly had forwarded an email to the complainant on the asking of her uncle.
Mr.Aggarwal would, on the other hand, submit that it is not a case of sending email alone as is made out by the petitioners, but this email contained various documents which mislead the complainant. Even if that is accepted, the fact remains that role alleged against the present petitioners would be only of sending these emails and otherwise they are not assigned any active role, CRIMINAL MISC. M NO.5111 OF 2013 (O&M) : 12 : which would lead to any fraud or perpetuating any such fraud. I find that the role of Mr.Vineet Handa is entirely different as compared to the present petitioners. It may not be appropriate to further comment on this aspect lest it prejudices his case before the trial court. It is, however, available on record that this Court did comment about connivance on his part with the complainant. The submission by the counsel for the petitioners in this regard and noticed that Mr.Vineet Handa had filed the petition to preempt the rights of the petitioners. The Court in this regard observed that the arguments appear to be convincing as there was no justification to file subsequent 17 petitions by Mr.Vineet Handa for passing similar order of withdrawal and he could have availed the alternative remedy in approaching the trial Court. Thus, it is observed that clever device may have been observed. Another important difference highlighted in this regard is the fact that Mr.Vineet Handa had withdrawn his prayer for pre-arrest bail filed before Sessions Court, but still filed the petition before this Court for anticipatory bail, which was not maintainable. Ofcourse suffice it to mention that his role cannot be compared with the present petitioners, who apparently are not facing any allegation except for sending email.
The issue of taking the petitioners in custody has also to be examined in the light of factual background of this case. This is a case where a thorough investigation was held by the police and that too by an officer, who was appointed due to consensus of the parties. The complainant also, thus, had agreed to the cases being investigated by this officer, who is an IPS Rank officer. The police CRIMINAL MISC. M NO.5111 OF 2013 (O&M) : 13 : after investigation decided to present a cancellation report. The cancellation report has not been accepted by the Court and so the petitioners and other accused have been summoned. What for they would be needed to be taken in custody to take their liberty, thus, would be a question, which would also be a poser for this court.
It may not be possible to accept the sweeping submissions made by Mr.Ashok Aggarwal that the relief of anticipatory bail is an extra ordinary one and is to be granted in exceptional and rare cases. The submissions on these lines did not receive the approval by the Hon'ble Supreme Court in Gurbaksh Singh Sibia's case (supra). In between, there may have been some cases where the Hon'ble Supreme Court expressed some different views in regard to the nature of anticipatory bail and whether it can enure throughout the trial once it is granted. In this regard, reference may be made to the cases of Adri Dharan Das Versus State of W.B., (2005) 4 Supreme Court Cases 303, Sunita Devi Versus State of Bihar, (2005) 1 SCC 608 and Nirmaljeet Kaur Versus State of M.P., (2004) 7 SCC 558. Recently the Hon'ble Supreme Court has very categorically held in the case of Siddharam Satlingappa Mhetre's case (supra) that anticipatory bail is not an extra ordinary in the sense that it should be invoked only in exceptional and rare cases. This Court in the case of Amarinder Singh and another Versus State of Punjab, Criminal Misc.No.21713-M of 2007, decided on 30.7.2007 has considered this aspect in the light of all the judgments referred to above, including Gurbaksh Singh Sibia's case and had granted pre-arrest CRIMINAL MISC. M NO.5111 OF 2013 (O&M) : 14 : bail to the petitioner following Gurbaksh Singh Sibia's case, which is a Constitutional Bench decision. The Constitutional Bench in the case of Gurbaksh Singh Sibia's case has held that no restriction should be imported into the provisions of Section 438 Cr.P.C. and that this is required to be saved and not jettisoned. The Constitutional Bench went on to hold that no limitation, as mentioned in Section 437 or 439 Cr.P.C.could be read into Section 438 Cr.P.C. The relevant observations in this regard are as under:-
"21.The High Court says in its fourth proposition that in addition to the limitations mentioned in Section 437, the petitioner must make out a "special case" for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 to a dead letter. In its anxiety, otherwise just, to show that the power conferred by Section 438 is not "unguided or uncanalised", the High Court has subjected that power to a restraint which will have the effect of making the power utterly unguided. To say that the applicant must make out a "special case" for the exercise of the power to grant anticipatory bail is really to say nothing. The applicant has undoubtedly to make out a case for the grant of anticipatory bail. But one cannot go further and say that he must make out a "special case". We do not see why the provisions of Section 438 should be suspected as containing something volatile or incendiary, which needs to be handled with the greatest care and caution CRIMINAL MISC. M NO.5111 OF 2013 (O&M) : 15 : imaginable. A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail."
The Hon'ble Supreme Court in Gurbaksh Singh Sibia's case (supra) even went into the consideration which need to be weighed while granting an order of anticipatory bail. It is noticed that grant of bail depends upon answering to variety of circumstances, the cumulative effect of which must enter into judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. The courts considering the application for anticipatory bail ought to be left free in exercise of their judicial discretion to grant bail if they consider it fit so to do on particular facts and circumstances of the case and on such conditions as the case may warrant. The courts similarly must be left free to refuse bail if the circumstances of the case so warrant, on consideration similar to those mentioned in Section 437 Cr.P.C. or which are generally considered to be relevant under Section 439 of the Code.
CRIMINAL MISC. M NO.5111 OF 2013 (O&M) : 16 :
Liberty of an individual is very precious and so is the interest of the society to ensure maintenance of peace, law and order in the society. Both aspects are equally important. It has to be kept in mind that power of arrest is generally found to have been grossly abused which goes to violate the personal liberty of a citizen of this ancient country, as is enshrined in Article 21 of the Constitution. It is in this background that the Hon'ble Supreme Court in Siddharam Satlingappa Mhetre's case (supra), has observed that the police should be slow in arresting the accused and the court considering the bail applications are to maintain fine balance between societal interest vis-a-vis personal liberty while adhering to the fundamental principle of the criminal jurisprudence that the accused is presumed to be innocent till he is found guilty by the Court.
The Court has held that platitude of Section 438 Cr.P.C. must be given its full play. There is no requirement that the accused must make out a "special case" for exercise of power for grant of anticipatory bail. If that is done, this virtually reduce the powers conferred by Section 438 Cr.P.C.to a dead letter. No doubt, the courts may have to exercise due caution and prudence on the facts and circumstances of the case but without subjecting the discretion to self-imposed limitations. No inflexible guidelines or straitjacket formula can be provided in this regard, but certain factors and parameters can certainly be kept in consideration while granting bail. These parameters generally are:-
"(i) The nature and gravity of the accusation and the exact role of the accused must be properly CRIMINAL MISC. M NO.5111 OF 2013 (O&M) : 17 : 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;
(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 Penal Code, 1860 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 CRIMINAL MISC. M NO.5111 OF 2013 (O&M) : 18 : 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".
It has been very aptly observed by the Hon'ble Supreme Court that arrest of a person lead to great ignominy, humiliation and disgrace. Thus, where the court is satisfied on the basis of above parameters that there is no likelihood of the accused persons evading the trial and their antecedents are also such where there is no previous case of criminality against them or that they are not likely to misuse the concession in any manner, then the case for grant of anticipatory bail would be made out.
One of the consideration which is kept in view is frivolous nature of the prosecution when there is some doubt about the alleged role and the allegations and there is no plea of tampering with the record, the accused person generally is held entitled to an order of bail. A personal liberty is a precious fundamental right and has to be curtailed only when the circumstances of the case would so demand. The Hon'ble Supreme Court has observed that arrest CRIMINAL MISC. M NO.5111 OF 2013 (O&M) : 19 : should be a last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of the case. The Hon'ble Supreme Court has suggested measures to avoid curtailment of personal liberty and in this regard has six suggestions, albeit illustrative ones and not exhaustive, given which might dispense with the necessity to curtail the liberty of the accused. These are as under:-
"(1) Direct the accused to join investigation and only when the accused does not cooperate with the investigating agency, then only the accused be arrested. (2) Seize either the passport or such other related documents, such as, the title deeds of properties or the Fixed Deposit Receipts/Share Certificates of the accused.
(3) Direct the accused to execute bonds; (4) The accused may be directed to furnish sureties of a number of persons which according to the prosecution are necessary in view of the facts of the particular case. (5) The accused be directed to furnish undertaking that he would not visit the place where the witnesses reside so that the possibility of tampering of evidence or otherwise influencing the course of justice can be avoided.
(6) Bank accounts be frozen for small duration during investigation".
Whether these safeguards are incorporated or not, but CRIMINAL MISC. M NO.5111 OF 2013 (O&M) : 20 : considering the background of this fact and the role played by the present petitioners, I do not find there is any need for taking the petitioners in custody when they simply have been summoned to appear before the Court. The issue raised by Mr.Aggarwal that the complainant has already filed an application under Section 340 Cr.P.C. for taking action against the petitioners for filing false evidence is not relevant for considering the prayer of the petitioners for grant of bail. Whether the petitioners have made any attempt to mislead or to rely on any evidence, which is false while seeking bail may have some bearing on the grant or refusal of bail. That is not even pleaded before me. Reference and reliance placed by counsel for the respondent on the judgment in the case of HDFC Bank Limited Versus J.J.Mannan Alias J.M.John Paul and another, (2010) 1 Supreme Court Cases 679 may also not strictly apply to the case in hand. The facts may be somewhat similar, but there is a major difference as there was no cancellation report prepared in this case after thorough investigation, which is one of the factors, which is relevant in the case of the petitioners. The counsel for the respondent had to reiterate that he made an attempt to rely on some observations made in Adri Dharan Das's case (supra) when his attention was invited to the fact that the said case has been overruled in Siddharam Satlingappa Mhetre's case (supra). The counsel then reiterated his arguments on that count.
The complainant and the prosecution have not been able to make out a case for which the personal liberty of the petitioners may have to be curtailed. Accordingly, the present petition is CRIMINAL MISC. M NO.5111 OF 2013 (O&M) : 21 : disposed of with a direction to the petitioners to appear before the trial Court on or before 8.3.2013. If the petitioners do so, their arrest shall remain stayed. The petitioners would be permitted to furnish bail bonds to the satisfaction of the trial Court. The trial court would be at liberty to impose any condition to ensure their continued participation in the trial. This arrangement will enure during the course of trial unless any of the condition is violated in any manner, which can then effectively be dealt with by the trial Court.
February 27, 2013 (RANJIT SINGH ) ramesh JUDGE