Himachal Pradesh High Court
__________________________________________________________ vs State Of Himachal Pradesh on 26 June, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. MP(M) No.1084 of 2019
.
Date of Decision: 26th June, 2019
__________________________________________________________
Deepak Suresh Jaiswal ........ 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. Peeyush Verma, Advocate.
For the Respondent: Mr. Sudhir Bhatnagar & Mr. Sanjeev
Sood, Additional Advocate Generals.
__________________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioner namely, Deepak Suresh Jaiswal, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.18 of 2019, dated 26.03.2019, under Sections 420, 506 read with Section 120B of IPC, registered at police Station, Kotkhai, District Shimla, Himachal Pradesh.
2. Sequel to order dated 14.06.2019, Inspector Santosh Kumar has come present alongwith the record. Mr. Sudhir Bhatnagar, learned Additional Advocate General, has 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 28/09/2019 23:59:18 :::HCHP 2also placed on record status report, prepared on the basis of the investigation carried out by the Investigating Agency.
.
Record perused and returned.
3. Close scrutiny of the record/status report, reveals that on 26.3.2019 complainant Susheel Chauhan alongwith 27 persons lodged complaint at police Station, Kotkhai, alleging therein that in the year, 2015 they had sold apple boxes to M/s Agri Fresh Trade Centre, whose proprietor is Pardeep Chauhan son of late Sh. Inder Singh, R/o Gram Tapri Gumma, Tehsil Kotkhai, District Shimla, H.P., but till date they have been not paid money. Complainant as well as other persons alleged that whenever they asked Pardeep Chauhan to return money, he extended threats. Allegedly, proprietor Pardeep Chauhan also issued post dated cheques to the complainant as well as other persons, but subsequently, took back the same on the pretext that amount would be paid in cash. During investigation, proprietor Pardeep Chauhan admitted the factum with regard to sale of apple boxes made by the complainant as well as 27 other persons, but claimed that apple boxes were actually purchased by coaccused ::: Downloaded on - 28/09/2019 23:59:18 :::HCHP 3 namely, Akhilesh Jaiswal and Rajesh Pandey. He alleged that since above named persons had no licence from Agriculture .
Produce Marketing Committee, they purchased the apple boxes in the name of his firm i.e. M/s Agri Fresh Trade Centre.
4. As per the investigation carried out by the Investigating Agency, a sum of Rs.1,62,99000/is payable by the accused to the complainant as well as other persons. On the basis of aforesaid complaint, FIR, as detailed hereinabove, came to be lodged against accused, namely, Pardeep Chauhan, Rajesh Pandey and Akhilesh Jaiswal under Sections, 420, 506 and 120B of IPC. Since during the investigation it emerged that present bail petitioner, namely, Deepak Suresh Jaiswal, who was working as an Accountant with accused Akhilesh Jaiswal had got the cheques signed from Akhilesh Jaiswal and then same were given to the complainant as well as other persons, his name also came to be included in the FIR. Present bail petitioner is in custody since 9th May, 2019.
5. Mr. Peeyush Verma, learned counsel representing the bail petitioner while referring to the record/status report, ::: Downloaded on - 28/09/2019 23:59:18 :::HCHP 4 strenuously argued that no case much less under Section 420, 506 & 120B of IPC, is made out against the bail petitioner, .
who was mere a employee of accused Akhilesh Jaiswal. He further contended that as per investigation, cheques in question were though got signed by the present bail petitioner from accused Akhilesh Jaiswal, but it is not the case of the prosecution that present bail petitioner issued the said cheques. He further contended that transaction, if any, is inter se complainant and proprietor of the firm Pardeep Chauhan and as such, no case, if any, can be registered against the present bail petitioner. Mr. Verma, further contended that even for the sake of arguments, if it is presumed that coaccused Akhilesh Jaiswal connived with the proprietor of the firm Pardeep Chauhan, but even in that eventuality, no role, if any, can be imputed to the present bail petitioner, who was a mere Accountant in the office of co accused Akhilesh Jaiswal.
6. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting that nothing is required to be recovered from the bail petitioner, contended ::: Downloaded on - 28/09/2019 23:59:18 :::HCHP 5 that since accused Akhilesh Jaiswal is absconding, it may not be in the interest of justice to release the bail petitioner. He .
further contended that present bail petitioner despite having known the whereabouts of coaccused Akhilesh Jaiswal, has not made truthful disclosure with regard to his whereabouts and as such, petition having been filed by him deserve out right rejection. Lastly, learned Additional Advocate General contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner alongwith other coaccused, he does not deserve any leniency. Learned Additional Advocate General further contended that since bail petitioner hails from the State of U.P., it would be difficult for the Investigating Agency to secure his presence during the trial in the event of his being enlarged on bail.
7. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that allegations of fraud and cheating is directly against the firm namely M/s Agri Fresh Trade Centre, whose proprietor is Pardeep Chauhan son of late Sh. Inder Singh.
::: Downloaded on - 28/09/2019 23:59:19 :::HCHP 68. Careful perusal of the complaint having been filed by the complainant as well as 27 other persons, clearly reveals .
that they had sold apple boxes to the M/s Agri Fresh Trade Centre, run by accused Pardeep Chauhan. Interestingly, in the case at hand, police on the basis of the statement given by accused Pardeep Chauhan, registered case against coaccused Rajesh Pandey and Akhilesh Jaiswal. Since proprietor of the firm, referred above, claimed that apple boxes were actually purchased by coaccused, as named above, using his firm name, police registered cases against those persons and one of the them i.e. Rajesh Pandey is already behind the bars.
9. Having closely perused the record, this Court is persuaded to agree with Mr. Peeyush Verma, Advocate that no role, if any, in the purchase of apple boxes is played by the bail petitioner, who as per the own case of the Investigating Agency was working as an Accountant with the accused Akhilesh Jaiswal. Mere allegation against the present bail petitioner is that cheques issued to the complainants on account of the sale of apple boxes were got signed by the bail petitioner from accused Akhilesh Jaiswal, but can it be a ::: Downloaded on - 28/09/2019 23:59:19 :::HCHP 7 ground to name the present bail petitioner in the FIR, is question which need to be determined on the totality of .
evidence, especially when as per own investigation conducted by the police, bail petitioner was working as an Accountant with coaccused Akhilesh Jaiswal.
10. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence to be collected on record by the prosecution, but having noticed aforesaid glaring aspect of the matter, this Court sees no reason to keep the bail petitioner behind the bars for an indefinite period, especially, when nothing is required to be recovered from the bail petitioner.
Interestingly, in the case at hand main accused Pardeep Chauhan stands already enlarged on bail.
11. Hon'ble Apex Court as well as this Court in catena of cases have held that freedom of an individual cannot be curtailed for indefinite period during the pendency of the trial because one is deemed to be innocent until his/her guilt, is not proved in accordance with law. In the case at hand, guilt, if any, of the bail petitioner is yet to be proved in ::: Downloaded on - 28/09/2019 23:59:19 :::HCHP 8 accordance with law by leading cogent and convincing evidence. Apprehension expressed by learned Additional .
Advocate General that in the event of petitioner's being enlarged on bail, he may flee from justice, can be best met by putting bail petitioner to stringent conditions, as has been fairly stated by learned counsel representing the bail petitioner.
12. 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 categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, 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. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and ::: Downloaded on - 28/09/2019 23:59:19 :::HCHP 9 expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The .
relevant paras of the aforesaid judgment are reproduced 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 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 ::: Downloaded on - 28/09/2019 23:59:19 :::HCHP 10 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 firsttime 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 ReInhuman Conditions in 1382 Prisons ::: Downloaded on - 28/09/2019 23:59:19 :::HCHP 11
13. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme .
Court Cases 49; 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 ::: Downloaded on - 28/09/2019 23:59:19 :::HCHP 12 an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."
.
14. 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, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. 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.
15. The Hon'ble Apex Court in Prasanta Kumar Sarkar v. 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;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;::: Downloaded on - 28/09/2019 23:59:19 :::HCHP 13
(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.
16. Consequently, in view of the above, the present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 2,00,000/ (Rs. Two lakh) with two local sureties in the like amount each, to the satisfaction of the learned trial Court, with 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 her from disclosing such facts to the Court or the Police Officer; and ::: Downloaded on - 28/09/2019 23:59:19 :::HCHP 14 d. He shall not leave the territory of India without the prior permission of the Court.
.
17. It is clarified that if the petitioner misuses his 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.
18. 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 application alone.
The bail petition stands disposed of accordingly.
Copy dasti.
(Sandeep Sharma), Judge 26th June, 2019 (shankar) ::: Downloaded on - 28/09/2019 23:59:19 :::HCHP