Himachal Pradesh High Court
Manohar Lal vs State Of Himachal Pradesh on 10 July, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA .
Cr.M.P.(M) No.945 of 2015.
Date of decision: 10.07.2015.
Manohar Lal .....Petitioner.
Versus
State of Himachal Pradesh ..... Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1No For the Petitioner : Mr.I.S.Chandel, Advocate.
For the Respondent : Mr.Virender Kumar Verma, Ms.Meenakshi Sharma, Mr. Rupinder Singh, Additional Advocate Generals with Ms.Parul Negi, Deputy Advocate General.
SI Hasham Ali, I/C, SIU, Una present alongwith records.
Tarlok Singh Chauhan, Judge (Oral).
The petitioner has sought regular bail in case FIR No.145/2015, registered at Police Station, Una, on 21.05.2015 under Sections 406, 409, 467, 468, 471, 420, 120B IPC and Section 13(2) of Prevention of Corruption Act.
2. The allegations against the petitioner are that he is working as a Junior Auditor in the Office of Regional Manager, HRTC, Una and he without verifying and cross-checking the purchase day book of the store passed the bills of the misappropriated goods which ultimately caused a loss of `42,67,142/- to the HRTC.
Whether the reporters of the local papers may be allowed to see the Judgment?Yes ::: Downloaded on - 15/04/2017 18:32:49 :::HCHP 2
3. It is vehemently argued by the learned counsel for the petitioner that even if the contents of the FIR are seen, it is evident that .
there is no allegation against the petitioner with respect to breach of trust by a public servant or even the allegation regarding cheating and dishonestly inducing the delivery of property, so much so, that there is even no allegation against the petitioner that any forged document was prepared.
4. On the other hand, learned Additional Advocate General has opposed the bail application by alleging that the petitioner is an accused of a serious offence and, therefore, bail should not be granted to him.
I have heard the learned counsel for the parties and have gone through the records of the case.
5. Seriousness of the allegations or the availability of the material in support thereof is not only the considerations for declining the bail. After-all, at the pre-conviction stage, there is presumption of innocence. That apart, the object of keeping a person in custody is only to ensure his availability to face the trial and receive the sentence that may be passed. This was so held by the Hon'ble Supreme Court in its recent judgment in Dr.Vinod Bhandari versus State of Madhya Pradesh 2015 AIR SCW 1052, wherein it was held:-
"12. It is well settled that at pre-conviction stage, there is presumption of innocence. The object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed. The detention is not supposed to be punitive or preventive. Seriousness of the allegation or the availability of material in support thereof are not the only considerations for declining bail. Delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for indefinite period if trial is not likely to be concluded within reasonable time.::: Downloaded on - 15/04/2017 18:32:49 :::HCHP 3
Reference may be made to decisions of this Court in Kalyan Chandra Sarkar vs. Rajesh Ranjan (2005) 2 SCC 42:(AIR 2005 SC 921), State .
of U.P. vs. Amarmani Tripathi (2005) 8 SCC 21: (AIR 2005 SC 3490), State of Kerala vs. Raneef (2011) 1 SCC 784: (AIR 2011 SC 340) and Sanjay Chandra vs. CBI(2012) 1 SCC 40 :(AIR 2012 SC 830)..
13. In Kalyan Chandra Sarkar (AIR 2005 SC 921) (supra), it was observed :
"8. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused r of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non-bailable offences are entitled to bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing require that such persons be released on bail, in spite of his earlier applications being rejected, the courts can do so."
14. In Amarmani Tripathi (AIR 2005 SC 3490) (supra), it was observed :
18. It is well settled that the matters to be considered in an application for bail are (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 charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi[(2001) 4 SCC 280] and Gurcharan Singh v. State (Delhi Admn.) [(1978) 1 SCC 118]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528]: (SCC pp. 535-36, para 11): (at Page 1871 of AIR) ::: Downloaded on - 15/04/2017 18:32:49 :::HCHP 4 "11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of .
course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of r supporting evidence.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598]] and Puran v. Rambilas [(2001) 6 SCC 338.)"
22. While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary. An examination of the material in this case, set out above, keeping in view the aforesaid principles, disclose prima facie, the existence of a conspiracy to which Amarmani and Madhumani were parties. The contentions of the respondents that the confessional statement of Rohit Chaturvedi is inadmissible in evidence and that that [pic]should be excluded from consideration, for the purpose of bail is untenable. This Court had negatived a somewhat similar contention in Kalyan Chandra Sarkar thus: (SCC p. 538, para
19) (at Page 1873 of AIR) "19. The next argument of learned counsel for the respondent is that prima facie the prosecution has failed to produce any material to implicate the respondent in the crime of conspiracy. In this regard he submitted that most of the witnesses have already turned hostile. The only other evidence available to the prosecution to connect the respondent with the crime is an alleged confession of the co-accused which according to the learned counsel was inadmissible in evidence. Therefore, he contends that the High Court was justified in granting bail since the prosecution has failed to establish even a prima facie case against the respondent. From the High Court order we do not find this as a ground for granting bail. Be that as it may, we think that this argument is too premature for us to accept. The admissibility or otherwise of the confessional statement and the effect of the evidence already adduced by the prosecution and the merit of the evidence that may be adduced hereinafter including that of the witnesses sought to be recalled are all matters to be considered at the stage of the trial."::: Downloaded on - 15/04/2017 18:32:49 :::HCHP 5
15. In Raneef (AIR 2011 SC 340) (supra), it was observed :
"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 novel A Tale of Two Cities, who forgot his r profession and even his name in the Bastille."
16. In Sanjay Chandra (AIR 2012 SC 830) (supra), it was observed:
"21. In bail applications, generally, it has been laid down from the earliest times that 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 is 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.
24. In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge". The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice."
6. It would also be seen that as held by the Hon'ble Supreme Court that very object of keeping a person in custody is only to ensure his availability to face the trial and receive the sentence that may be passed. Therefore, the object of bail is neither punitive nor preventative.
Once that be so, then, at this stage, deprivation of liberty will have to be considered to be a punishment, unless of course, the presence of the accused person cannot be secured.
::: Downloaded on - 15/04/2017 18:32:50 :::HCHP 67. 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.
8. Even otherwise, the law with regard to bail is now well settled. As early as in the year 1978, the Hon'ble Supreme Court in Gurcharan Singh vs. State (Delhi Administration) (1978) 1 SCC 118 laid the following criteria for grant of bail:
"22. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub- section (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the Court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the Court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437(1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.******
24. Section 439(1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437(1) there is no ban imposed under Section 439(1), CrPC against granting of bail by the High Court or the Court of Session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so, the High Court or the Court of Session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439(1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437(1) and Section 439(1) CrPC of the new Code are ::: Downloaded on - 15/04/2017 18:32:50 :::HCHP 7 the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference .
to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out."
9. The Hon'ble Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced;
and
(viii) danger, of course, of justice being thwarted by grant of bail.
10. Thereafter, in a detailed judgment, the Hon'ble Supreme Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694, while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565, laid down the following parameters for grant of bail:-
"111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of ::: Downloaded on - 15/04/2017 18:32:50 :::HCHP 8 anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on .
facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour.
112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
(i) The nature and gravity of the accusation and the exact role of r the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or the other offences.
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of ::: Downloaded on - 15/04/2017 18:32:50 :::HCHP 9 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.
113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record.
114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts.
In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available."
(Emphasis supplied)
11. In Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, the Hon'ble Supreme Court made the following pertinent observations in paras 21, 22, 23, and 40 as under:-
"21. In bail applications, generally, it has been laid down from the earliest times that 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 is 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.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un- convicted persons should be held in custody pending trial to secure ::: Downloaded on - 15/04/2017 18:32:50 :::HCHP 10 their attendance at the trial but in such cases, `necessity' is the operative test. In this country, 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.
23. 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 refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.
40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required."
12. Taking into consideration the aforesaid parameters, it would be seen that the petitioner though accused of a serious offence is not the sole accused in the case, therefore, his complicity and the ultimate role played by him would only be established in a full-fledged trial. However, for the present, after taking into consideration the entire facts and circumstances, I feel that it would travesty of justice to deny bail to the petitioner. Not that I am unmindful of the fact that the accusations against the petitioner are grave and serious in nature , but ::: Downloaded on - 15/04/2017 18:32:50 :::HCHP 11 then a balance has to be struck between the rights of the petitioner and rights of the police to carry out free and fair investigation.
.
13. It is not even the case of the prosecution that in the event of the petitioner being released on bail, he would in any manner impede the course and cause of justice or that the petitioner may in any manner hamper the free, fair and full investigation. Since the object of keeping a person in custody is to ensure his availability to face trial and receive the sentence that may be passed upon him, there is no reason to doubt that the petitioner would in any manner not join the investigation or even the trial or that he would not receive the punishment that may be ultimately awarded. This assumes importance when there is no allegation to this effect even from the prosecution side. Even otherwise, stringent conditions for securing the presence of the petitioner for the purpose of trial etc. can always be imposed.
14. Accordingly, the bail application is allowed and the petitioner is ordered to be released on bail in FIR No. 145/2015, registered at Police Station, Una, on 21.05.2015, under Sections 406, 409, 467, 468, 471, 420, 120B IPC and Section 13(2) of Prevention of Corruption Act, on his furnishing personal bond in the sum of `1,00,000/- with two sureties of the like amount to the satisfaction of learned Judicial Magistrate Ist Class, Una, District Una, subject to the following conditions:-
(i) 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;::: Downloaded on - 15/04/2017 18:32:50 :::HCHP 12
(ii) he shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner .
whatsoever;
(iii) he shall not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(iv) he shall not leave the territory of India without prior permission of the Court.
Learned Judicial Magistrate Ist Class, Una, District Una, is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.
15. Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.
Petition stands disposed of.
Copy 'dasti'.
July 10, 2015. (Tarlok Singh Chauhan),
(krt) Judge.
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