Jammu & Kashmir High Court
Hilal Rather Through His Wife vs Union Of India Through Cbi Jammu on 29 December, 2020
Author: Javed Iqbal Wani
Bench: Javed Iqbal Wani
HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
(Through Video Conferencing)
Pronounced On: 29.12.2020.
Bail App No.77/2020
CrLM No. 1156/2020
CrLM No. 1256/2020
CrLM No. 431/2020
CrLM No. 432/2020
CrLM No. 433/2020
Hilal Rather through his wife
Applicant/Petitioner (s)
Through: -
M/s Z. A. Shah and
Mr. Sunil Sethi, Sr. Advocates with
Mr. Pranav Kohli, Advocate
VS
Union of India through CBI Jammu
.....Respondent(s)
Through: -
Ms. Monika Kohli, Advocate.
CORAM:
Hon'ble Mr. Justice Javed Iqbal Wani, Judge.
JUDGEMENT
1. The instant petition has been filed by the petitioner namely Hilal Rather through his wife Shazia Murtaza for grant of bail in case FIR No. RC0042020A0002 dated 04.03.2020 under Sections 5(1) (d) read with Section 5 (2) of the J&K Prevention of Corruption Act Svt. 2006 and under Sections120-B, 409,420 and 471 of RPC and under challan bearing No. Nil titled as CBI Vs. Hilal Ahmed Rather & Ors pending before the court of Special Judge Anti-Corruption CBI cases, Jammu.
2. Before dealing with the instant petition it would be appropriate to briefly delineate some important facts here under: - Page 2 of 22 Bail App No. 77/2020
2.1 That an FIR is registered being FIR No. 13/2019 dated 27.06.2019 in the Police Station Anti-Corruption Bureau, Jammu, (for brevity ACB) under Section5(1) (d) read with Section 5 (2) of the J&K Prevention of Corruption Act Svt. 2006 (hereinafter for short PC Act) and under Sections 120-B, 409,420 and 471 of RPC implicating petitioner therein as an accused.
2.2. That vide letter dated 26.02.2020 issued by the Deputy Secretary, GAD, Civil Secretariat, Jammu, the investigation of the case is transferred to Central Bureau of Investigation (for brevity CBI) which upon receipt re-registered the same as FIR bearing No. RC 0042020A002 dated 04.03.2020 under Sections under Sections 5(1) (d) read with Section 5 (2) of the J&K Prevention of Corruption Act Svt. 2006 and under Sections 120-B, 409,420 and 471 of RPC.
2.3. Upon completion of investigation Challan is presented before the learned Special Judge Anti Corruption (CBI cases) Jammu, (for brevity the Trial court).
2.4. Petitioner filed a bail application before the Trial court on16.01.2020, which came to be dismissed vide order dated 04.02.2020 where after the petitioner moved an application for interim bail on account of his ailing health and also outbreak of COVID-19 before the Trial court on 06.03.2020 which also is dismissed vide order dated 31.03.2020.
Page 3 of 22Bail App No. 77/2020 2.5. The petitioner after dismissal of interim bail application by the Trial court vide order dated 31.03.2020 filed an application before this court seeking interim bail which too is dismissed on 24.04.2020 where after the main bail application filed on 06.03.2020 before the Trial court by the petitioner is dismissed on 14.05.2020 by the Trial court.
2.6. Upon dismissal of the bail application supra vide order dated 14.05.2020 by the Trial court, petitioner filed the instant bail application.
Petitioners contentions/ grounds:
3. Petitioner in the petition contends that the ACB lodged the FIR and initiated investigation without jurisdiction and authority of law inasmuch as the final report presented is illegal and no charges could be framed against the petitioner under the provisions of PC Act.
4. Petitioner further contends in the petition that the Trial court while dismissing his bail application vide order dated 14.05.2020 has wrongly held the petitioner to be the mastermind in the alleged scam being baseless and without any iota of truth and also being factually incorrect, in that, the term loan to the tune of Rs. 7427.22 Crores (out of which 8 Crores were kept by the bank for payment of interest pre moratorium period after sanctioning of loan in the month of September 2012),came to be obtained by the firm from the Jammu and Kashmir Bank Branch University Campus, Jammu, by M/s Paradise Avenue partnership concern consisting of partners namely Page 4 of 22 Bail App No. 77/2020 the petitioner, M/s Oracle Constructions through its partners namely Dr. Rizwan Rahim Dar, Ghulam Mohd Bhat, Daljeett Wadhera and Deepshikha Jamwal, for raising the construction of flats and that the said term loan was approved by the bank authorities after completing all necessary requisite formalities inasmuch as after satisfying themselves about viability of the project.
5. Petitioner next contends that the entire loan amount availed from the bank by the firm came to be sanctioned by the bank from time to time validly as per requirement/ schedule and has been utilized for the construction of the flats/ projects.
6. Petitioner further contends that though FIR was registered on 27.06.2019, the petitioner was not arrested by the investigating agency and petitioner co-operated with the investigation inasmuch as produced all documents asked by the investigating agency.
7. Petitioner next contends that assuming that there has been breach of agreement between the lender bank and borrower firm yet same would not have attracted criminal prosecution.
8. Petitioner next contends that the firm repaid an amount of Rs.
33,58,34,272/= to the bank even during the moratorium period and that yet the bank invoked proceedings under SARFAESI Act against the firm and sealed the project while taking constructive possession thereof in terms of Section 13(4) of the SARFAESI Act.
9. Petitioner urges that even though the alleged offence except 409 IPC carry maximum punishment upto 7 years yet Section 409 IPC was incorporated in the FIR by the respondents which is not even made Page 5 of 22 Bail App No. 77/2020 out and has been incorporated to deprive the petitioner of his rights and liberty.
10. Petitioner contends that the is entitled to bail after completion of investigation and filing of charge sheet. Petitioner states to be suffering from various ailments having undergone surgeries besides suffering from Liver infection and respiratory problems and thus, on account of his health issue is entitled to bail more particularly on account of outbreak of COVID-19 and overcrowding in jails.
11. Petitioner contends that admittedly the final report has been filed before the Trial court and that the object of bail in first place is to secure attendance of the accused in the trial thus, applicant/petitioner is entitled to grant of bail.
Respondents contentions/grounds:
12. The case of the respondents/prosecution as stated in their objections hinges on the premise that the petitioner has committed economic offences and that the petitioner misappropriated the loan amount availed from the bank and utilized the same for his personal use in gross violation of terms and conditions of the letter of sanction of loan.
13. Respondents contend that the petitioner committed the economic offences while hatching a conspiracy in league and connivance with the officials of the bank namely Iqbal Singh the then branch head of the J&K Bank, New University Campus, branch Jammu, and Arun Kapoor the then branch head of the J&K Bank, New University Campus branch Jammu, which bank officers committed acts of Page 6 of 22 Bail App No. 77/2020 omission and commission in gross violation of credit policy and relevant guidelines of the bank.
14. In nutshell the case setup by the respondent/prosecution is that the petitioner being a mastermind hatched a criminal conspiracy along with the bank officers namely Iqbal Singh and Arun Kapoor in order to cheat the bank while obtaining term loan from the bank diverted and utilized the same illegally in violation of terms and conditions for which further investigation in the matter is under way.
15. Respondents while seeking dismissal of the bail application in their objections have referred to Apex court judgement titled as "CBI Vs. Ramesh Gelli" passed in Cr. Appeal No. 1077 -1081 of 2013 and WP(Crl) No. 167 of 2015, case tilted as "State of Uttar Pradesh Vs. Anil Kumar Sharma" 2015 (3) SCC (Crl) page 368 as also "State of Bihar Vs. Amit Kumar" and "Y. S.Jagan Mohan Reddy Vs. CBI".
16. Heard learned counsel for the parties.
17. The settled position of law as unfolded and delineated by the Apex court of the Country in a catena of judgements on the subject relating to the grant of bail, isthat there is no straight jacket formula or settled rules for deciding the question of "bail or jail" in non-bailable offences. It is a discretionary relief and discretion has to be exercised in a judicious manner. The court has to utilize the discretion as per settled law and the principles as laid down by the Code of Criminal Procedure and various judicial decisions. It cannot be exercised as a matter of course but has to be handled on the edifice of the judicial gravity.
Page 7 of 22Bail App No. 77/2020
Further qua law of bails a reference to the principle of law laid down in the judgment of the Apex court titled as "Anil Kumar Yadav Vs. State (NCT of Delhi and Anr.) reported in 2018 (12) SCC 129"would be relevant and germane wherein at Para15 following has been held: -
"as held in Puran case [2001(6) SCC 338] while considering the question of grant of bail, court should avoid consideration of bails on evidence as it is not relevant consideration and that while it is necessary to consider the prima-facie case, an exhaustive exploration of the merits of the case should be avoided. We, therefore consciously referain from considering the merits of the materials / evidence collected by the prosecution"
18. The object of grant of bail as it extends back beyond memory is to secure the attendance and appearance of the accused person at the trial. The law suggests that the purposes of bail is neither punitive nor preventive. It (the law) divulges and imparts that the deprivation of bail must be considered as a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The maxim and the axiom of the law of the bails is that courts owe more than verbal respect to the principle that punishment begins after conviction and that every person is deemed to be innocent until duly tried and found guilty. It has been consistant view of the Apex court that detention in custody pending completion of trial could be a cause of great hardship and although necessity may demand that some un- convicted person should be held in custody pending trial to secure the attendance at the trial, but in such case, "necessity" is the baseline. Page 8 of 22 Bail App No. 77/2020
19. The Law laid down in Criminal Appeal No. 742 of 2020 (arising out of SLP (Crl) 5598 of 2020 bearing title"Arnab Manoranjan Goswami Vs. the State of Maharashtra and Ors"with Criminal Appeal No. 743 of 2020 (arising out of SLP (Crl) No. 5599 of 2020and with Criminal Appeal No. 744 of 2020 (arising out of SLP (Crl) No. 5600 of 2020 is woven in elegance and eloquence. It covers the subject for grant of bail from a broader range, the relevant portion whereof is extracted here under: -
"63. More than four decades ago, in a celebrated judgment in State of Rajasthan, Jaipur vs Balchand, Justice Krishna Iyer pithily reminded us that the basic rule of our criminal justice system is "bail not jail". The High Courts and Courts in the district judiciary of India must enforce this principle in practice, and not forego that duty, leaving this Court to intervene at all times. We must in particular also emphasize the role of the district judiciary, which provides the first point of interface to the citizen. Our district judiciary is wrongly referred to as the „subordinate judiciary‟. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them. High Courts get burdened when courts of first instance decline to grant anticipatory bail or bail in deserving cases. This continues in the Supreme Court as well, when High Courts do not grant bail or anticipatory bail in cases falling within the parameters of the law. The consequence for those who suffer incarceration are serious. Common citizens without the means or resources to move the High Courts or this Court languish as under trials. Courts must be alive to the situation as it prevails on the ground -in the jails and police stations where human dignity has no protector. As Page 9 of 22 Bail App No. 77/2020 judges, we would do well to remind ourselves that it is through the instrumentality of bail that our criminal justice system„s primordial interest in preserving the presumption of innocence finds its most eloquent expression. The remedy of bail is the "solemn expression of the humaneness of the justice system". Tasked as we are with the primary responsibility of preserving the liberty of all citizens, we cannot countenance an approach that has the consequence of applying this basic rule in an inverted form. We have given expression to our anguish in a case where a citizen has approached this court. We have done so in order to reiterate principles which must govern countless other faces whose voices should not go unheard.
20. A co-ordinate bench of this court in case titled as "Mehraj-ud-Din Nadroo Vs. State of J&K being BA No. 74/2018" decided on 07.07.2018 after broaching on the subject relating to the law of bails as contained and detailed in various judicial pronouncements has held that in this Country, it would be quite contrary to the concept of personal liberty as 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 temper with the witness, if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a 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 Page 10 of 22 Bail App No. 77/2020 refuse bail to an un-convicted person for the purposes of giving him a taste of imprisonment as a lesson.
21. Further it needs to be reminded that the order does not require to be padded and loaded with judicial dictums expanded by the Hon‟ble Supreme court and various High courts on the matter at hand. However, the law laid down by the Supreme court in case of "Data Ram Singhv/sStateofUttarPradesh&Ors"reportedin2018 (3) SCC page 22,encapsulates the concept of bail in a small space and same is extracted and reproduced hereunder:
"1. 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 list 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.
2. 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 Page 11 of 22 Bail App No. 77/2020 denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
4.To put it shortly, a human attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accuse person to police 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 Inhuman Conditions in 1382Prisons.
5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah vs. Union of India going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia vs. State of Punjab in which it is observed that it was held way back in Nagendra Nath Chakravarti, In that bail is not be withheld as a punishment. Reference was also made to Emperor vs. H. L. Hutchinson wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days."
22. The judicial pronouncements cited above are a sequel to the fact that the oft repeated and adoled adages, maxims and axioms of the law of bails which have influenced the judicial mind since long are" bail and not jail" coupled with the presumptions of innocence in favour of a person accused of an offence. The other expressions of general principles regulating intellection are firstly; that the punishment shall begin after the conviction; secondly, that the grant of bail is in the Page 12 of 22 Bail App No. 77/2020 discretion of the court which has to be exercised judiciously; thirdly, that the courts while dealing with the bail matters have to adopt a liberal approach and so on and so forth.
23. Considering the instant petition on the above scales, the pith and substance of the objections of the respondents filed in opposition to the bail application is that the release of the petitioner from custody will hamper the investigation of the case and that the petitioner will tamper with the prosecution evidence in case he is admitted to bail and that the offences committed by him (the petitioner) is an economic one and is, as such, grave in nature.
24. While considering the instant petition in the backdrop of above objections of the respondents it would be quite advantageous to refer to the judgement of the Hon‟ble Supreme court titled as "P. Chidambaram Vs. Directorate of Enforcement" bearing Criminal Appeal No. 1831/2019 (arising out of S.L.P (Criminal) No. 10493 of 2019 wherein the pros and cons of the entire gamut of controversy has been considered and held in Para 21 as follows:
"21. Thus from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case.Page 13 of 22 Bail App No. 77/2020
Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of "grave offence" and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to the gravity of offence is a factor which is in addition to the triple test or the tripod test that would be normally applied. In that regard what is also to be kept in perspective is that even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the consideration will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial."
25. Further the dictum of law enunciated in thecase of "Sanjay Chandra Vs. Central Bureau of Investigation reported in 2012 (1) SCC has also a direct bearing on the instant petition and the relevant excerpts thereof are detailed below as contained in Para 43 to 46: Page 14 of 22 Bail App No. 77/2020
43. There are seventeen accused persons .Statements of witnesses runs to several hundred pages and the documents on which reliance is placed by the prosecution, is voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they been convicted. It is not in the interest of justice that the accused should be in jail for an indefinite period. No doubt, the offence alleged against the appellants is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter us from enlarging the appellants on bail when there is no serious contention of the respondent that the accused, if released on bail, would interfere with the trial or tamper with evidence. We do not see any good reason to detain the accused in custody, that too, after the completion of the investigation and filing of the charge-
sheet.
44. This Court, in State of Kerala Vs. Raneef has stated (SCC p.789, para 15), "15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's Page 15 of 22 Bail App No. 77/2020 novelA Tale of Two Cities, who forgot his profession and even his name in the Bastille."
45. In Bihar Fodder Scam (Laloo Prasad case), this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pre- trial prisoners would not serve any purpose.
46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI."
26. The law evolved in the above judicial pronouncements makes it abundantly and explicitly clear that the rule established by Hon‟ble Justice Krishna Iyerthat is "Bail and not Jail" holds good even in cases relating to the commission of economic offences with a note of caution that the facts and circumstances of each case have to be tested on the bulwark of the principles laid down by the Apex court and the High courts in the matter relating to grant or refusal of bail. These judgements do enunciate and substantiate that the accused cannot be Page 16 of 22 Bail App No. 77/2020 held in a leash or allowed to languish in jail till infinity particularly when his presence is neither required during the investigation of the case nor will the investigation suffer in case the discretion of grant of bail is exercised in his favour. These judgements also elucidate and enunciate that the fundamental principle of criminal justice system is that a person cannot be deprived of his liberty guaranteed by Article 21 of the Constitution except for a distinct breach of law. These further recapitulate that there is no reason why a person should be imprisoned during the period of his trial.
27. Article 21 of the Constitution has been interpreted by the courts to mean and convey that right to live a life with dignity and decency is a fundamental right. It has been held that the duration of custody which the accused has undertaken in a particular case is a relevant factor to which the court should be cognizant, conscious and attentive while considering the grant of bail.
28. Looking at the instant case from the above angle and obliquity the accused has been in custody for the last more than 10 months by now and to be specific he has been arrested on 16.01.2020 as is manifest from the perusal of the affidavit dated 28.10.2020 filed by the CBI. The said affidavit also bears testimony to the fact that prior to his arrest, the petitioner was questioned by the investigating agency on 19.07.2019, 16.08.2019, 26.08.2019, 30.09.2019, 07.11.2019, 20.11.2019, 21.11.2019,26.11.2019, 16.12.2019, 23.12.2019, 24.12.2019, 26.12.2019, 28.12.2019,06.01.2020, 07.01.2020 and 08.01.2020. The petitioner has been interrogated by the investigating agency on 16.01.2020, 17.01.2020, 18.01.2020 and 20.01.2020 during Page 17 of 22 Bail App No. 77/2020 police remand. The petitioner suffered the bouts of illness while in custody as is reflected in the same affidavit. The petitioner has never been interrogated after 20.01.2020 meaning thereby that he suffered custody ceaselessly when he is not supposed to be in prison as nothing substantial has to be done in the case that would warrant or justify his custody in jail. The charge sheet i.e. report in terms of Section 173 CrPC has also been filed against the petitioner in addition to others who admittedly and for unknown reasons have never been arrested by the investigating agency despite alleged to be co-conspirators of the petitioner and even not reported to have been either absconding or missing by the respondents.
29. Taking into consideration these facets of the case, the law laid down in "Sanjay Chandra's" case supra, more particularly Para 46 of the judgement which is repeated and reiterated here lays down that although the accused are charged with economic offences of huge magnitude and these offences, if approved, may jeopardize the economy of the Country, yet at the same time we cannot lose sight of the fact that the investigating agency has already completed the investigation and the charge sheet is already filed before the court, therefore, the presence of the accused in custody may not be necessary for further investigation and the appellants are entitled to the grant of bail. This judgement of law squarely covers the facts and circumstances of the instant case and on the face of it, the petitioner deserves to be admitted to bail.
30. The contention of the prosecution that the accused, if admitted to bail will temper with the prosecution evidence is a spurious and a strained Page 18 of 22 Bail App No. 77/2020 argument which is not supported by any evidence. The prosecution case primarily revolves on the documentary evidence to which the accused cannot be supposed to have any access and therefore, the question of winning over the witnesses by the petitioner or by any one on his behalf pales into insignificance. Even otherwise also this contention of the prosecution is an argument just for the heck of it as it is not supported by any material evidence. This plea has been raised to simply thwart the course of justice. There has been no allegation by the prosecution about this eventuality till such time that the bail applications were filed whether in this court or any other forum. The prosecution has not laid its hands on any direct or indirect evidence against the petitioner that would depict and portray that he did any act that had the temerity of influencing the witnesses. The law laid down in "P. Chidambaram's" case supra details it in conscious terms that in the absence of any contemporaneous material, no weight could be attached to the allegation that the appellant has been influencing the witnesses by approaching the witnesses. The conclusion of learned single judge".....that it cannot be ruled out that the petitioner will not influence the witnesses directly or indirectly...." is not substantiated by any materials and is only an generalized apprehension and appears to be speculative. Mere averment that appellant approached the witnesses and the assertion that the appellant would further pressurize the witnesses, without any material basis cannot be the reason to deny regular bail to the appellant more so, when the appellant has been in custody for nearly 2 months, co-operated with the investigating agency and the charge sheet is also filed. The contention of the Page 19 of 22 Bail App No. 77/2020 prosecution on this count is, therefore, frivolous and does not have any semblance of fairness attached to it.
31. Much ado about nothing has been made by the learned counsel for the respondents by referring to and relying on the evidence gathered during the investigation to canvass that the petitioner has committed an economic offence and therefore, he cannot be admitted to bail. This argument is spurious and a specious one on the ground that ultimately the evidence collected by the investigating agency is in the matter of allegations leveled against the petitioner which have to be established during the course of the trial in which the petitioner has to be given a fair opportunity of putting forward his case where after a definite conclusion can be arrived.
32. As has been noticed above and at the cost of risking repetition, an elaborate documentation of merits of the case has not to be undertaken at the stage of granting or refusing of bail. The merits and de-merits of case cannot be discussed lest it may prejudice the accused. This proposition of law is fortified by "P. Chidambaram's" case supra, as well wherein at Para 24 following has been noticed: -
24. Having said so, in present circumstance we were not very much inclined to open the sealed cover although the materials in sealed cover was received from the respondent. However, since the learned Single Judge of the High Court had perused the documents in sealed cover and arrived at certain conclusion and since that order is under challenge, it had become imperative for us to also open the sealed cover and peruse the contents so as to satisfy ourselves to that extent. On perusal we have taken note that the statements of persons concerned have Page 20 of 22 Bail App No. 77/2020 been recorded and the details collected have been collated. The recording of statements and the collation of material is in the nature of allegation against one of the co-accused Karti Chidambaram- son of appellant of opening shell companies and also purchasing benami properties in the name of relatives at various places in different countries. Except for recording the same, we do not wish to advert to the documents any further since ultimately, these are allegations which would have to be established in the trial wherein the accused/co-accused would have the opportunity of putting forth their case, if any, and an ultimate conclusion would be reached. Hence in our opinion, the finding recorded by the learned Judge of the High Court based on the material in sealed cover is not justified.
33. Even otherwise as well if the statements on record and the material collected during the course of investigation are looked into still the guilt of accused/petitioner will held to be established and proved in the trial and the presumption of law that accused is an innocent till such time that he is found guilty does hold good even in case involving the commission of economic offences. This reasoning can be well referred and relied upon here as well as is detailed out in hereinabove at Para 21 of "P. Chidambaram's case supra.
34. To dispel the arguments that bail can be allowed even in economic offences learned counsel representing the CBI has laid much emphasis on the case titled as "Bihar Vs. Amit Kumar", "Y. S. Jagan Mohan Reddy Vs. CBI" and "NinnaGadda Prasad Vs. CBI". These judgements do laid down the propositions of law that socio economic Page 21 of 22 Bail App No. 77/2020 offences constitute a class apart and need to be visited with different approach in the matter of grant of bail.
35. Be that as it may, these judgements supra do not affirm or articulate that there is a legal bar, impedance or a clog on the right of the accused to seek bail in such case, these pronouncements do not provide that a person or accused of such offences shall be incarcerated till the day of resurrection nor do these contemplate and visualize that the age old adages as these relate to the law of bails or the principles laid down for grant of bail should be ignored or even not looked into. These authorities do not lay down anywhere that the accused should be bolted with shackles till the date of conclusion of the trial.
36. Deprivation of liberty tentamounts to punishment. The consequences of pre trial detention are grave. Prison hell destroys the manifestation of feelings and sensibility of a person. The petitioner has been languishing in jail for the last more than 10 months by now and he cannot be hampered from preparing for his defence which is of an essence in a criminal trial. The discretion for grant of bail has to be exercised on the well established propositions and principles laid down from time to time by the Apex court. Sentiments, strain, temper and passion do not have any role to play in exercising the discretion for grant of bail bestowed unto the courts.
37. In view of preceding analysis the petitioner is held entitled to bail and consequently is admitted to bail subject to following conditions: -
(i) Furnishing of personal bond to the tune of Rs. 5 Lac with 2 sureties of the like amount to the satisfaction of the Trial court.Page 22 of 22 Bail App No. 77/2020
(ii) To co-operate with the investigating agency in the investigation of the case as and when required by the investigating agency, without any fail.
(iii) To face the trial before the Trial court without any fail and to present himself before the Trial court as and when asked to do so.
(iv) To surrender and deposit passport before the Trial court, (if not already surrendered) and deposit the same within three days from the date of passing of this order.
(v) Not to leave the territorial jurisdiction of this court without the permission of the Trial court.
(vi) Not to influence or intimidate directly or indirectly the prosecution witnesses or temper with the prosecution evidence by any manner, mode or method.
38. Bail application is disposed of.
Javed Iqbal Wani Judge Jammu 29 /12/2020 "Ishaq"
i. Whether the Order is speaking? Yes/No.
ii. Whether the Order is reportable? Yes/ No.
BIR BAHADUR SINGH
2020.12.29 16:34
I attest to the accuracy and
integrity of this document