Himachal Pradesh High Court
Suraj vs State Of Himachal Pradesh on 19 March, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 47 of 2018
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Date of Decision No.19.03.2018
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Suraj ........ Petitioner
Versus
State of Himachal Pradesh .....Respondent.
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
For the Petitioner:
For the Respondent:
Mr. Balwant Singh Thakur, Advocate.
Mr. Dinesh Thakur, Additional Advocate
General.
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Sandeep Sharma, Judge (oral):
Bail petitioner, namely Suraj, who is in custody since 06.09.2017, has approached this Court for grant of regular bail under Section 439 of the Code of Criminal Procedure in case FIR No.119 of 2016, dated 13.09.2016, under Sections 420, 306, 419, 467, 468 & 471 of the Indian Penal Code, registered at Police Station, Bhoranj, District Hamirpur, Himachal Pradesh.
2. Sequel to order dated 5.3.2018, ASI Balbir Singh, Police Station, Bhoranj, has come present in Court alongwith the record of the case. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 20/03/2018 23:25:58 :::HCHP 2basis of the investigation carried out by the investigating agency.
Record perused and returned.
3. Perusal of the record/status report, suggests that FIR, .
detailed hereinabove, came to be lodged at police Station, Bhoranj at the behest of complainant namely Smt. Kashmiro Devi, who in her statement recorded under Section 154 Code of Criminal Procedure, alleged that her husband namely Amarjeet Sharma, committed suicide on 4.6.2016 by hanging himself with ceiling fan. Complainant further alleged that her husband was compelled to commit suicide on account of cheating/fraud committed upon him by various persons including the present bail petitioner, as named in the FIR. During investigation, police also recovered suicide note in the shape of diary, wherein deceased had stated/ written that he without having any authorization from Pandher Co-operative Society, invested the money of the society in various companies namely Reliance Communication, New Delhi and Union Value Service, Gajiabad. Since, the deceased was unable to recover an amount of Rs. 51, 29,020/- allegedly deposited/invested by him in the aforesaid companies, despite his repeated requests made to the persons owing/managing the affairs of aforesaid companies, he was compelled to commit suicide. On the basis of aforesaid statement given by the wife of deceased Amarjeet Sharma, FIR detailed hereinabove, came to be lodged against the bail petitioner, who at that relevant time was managing the affairs ::: Downloaded on - 20/03/2018 23:25:58 :::HCHP 3 of M/s Star Investment Company. Allegedly, deceased Amarjeet Sharma had deposited a sum of Rs. 3,94,000/-with the aforesaid company. Since, the name of company owned/managed by the .
bail petitioner was also recorded in the diary maintained by the deceased, bail petitioner came to be arrested on 6.9.2017 and since then he is behind the bars.
4. Mr. Balwant Singh Thakur, learned counsel representing the bail petitioner, while inviting attention of this Court to the record/status report, contended that as per investigation report, an amount of Rs. 3, 94,000/- was allegedly got deposited by the bail petitioner in his bank account. During investigation, police has already ceased the bank account of the bail petitioner, wherein an amount of Rs. 2,69,664/- is lying deposited. He further stated that remaining amount of Rs. 1, 25, 000/- has been already deposited in the Kangra Central Cooperative Bank, Lamblu on 17.3.2018 and this factum has been duly acknowledged by the investigating agency in its status report.
Mr. Thakur, further contended that amount lying deposited in the account of the bail petitioner, can also be ordered to be released in favour of the Cooperative Society. While referring to the status report/record, learned counsel for the petitioner, contended that though there is nothing on record suggestive of the fact that deceased Amarjeet Sharma was cheated/defrauded or compelled by the bail petitioner to deposit the amount in M/s Star ::: Downloaded on - 20/03/2018 23:25:58 :::HCHP 4 Investment Company, rather deceased Amarjeet Singh of his own deposited an amount of Rs. 3, 94,000/- in the bank account of the aforesaid company. Mr. Thakur, further contended that there is no .
material adduced on record suggestive of the fact that communication, if any, was made by Amarjeet Singh to the bail petitioner, requesting him to return aforesaid amount, but to the utter surprise of the bail petitioner he came to be arrested on very flimsy ground. While making prayer to release the bail petitioner, Mr. Thakur, contended that since entire amount allegedly deposited by deceased Amarjeet Sharma stands deposited by the present bail petitioner, he deserves to be enlarged on bail.
5. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly admitting that as per investigation only Rs. 3, 94,000/- was deposited in the company owned and managed by the bail petitioner, contended that though amount, as referred above, stands duly recovered, but keeping in view the gravity of offence allegedly committed by the bail petitioner, he does not deserve any leniency, rather needs to be dealt with severely. Mr. Thakur, learned Additional Advocate General, contended that there is evidence on record suggestive of the fact that bail petitioner induced/persuaded deceased Amarjeet Sharma to deposit/invest the amount in his company, which has been otherwise found to be fake. Mr. Thakur, further contended that investigation in the case is almost complete, but in the event of ::: Downloaded on - 20/03/2018 23:25:58 :::HCHP 5 petitioner's being enlarged on bail at this stage, he may influence or temper with the prosecution evidence. Mr. Thakur, further contended that since the bail petitioner hails from the other State, .
it may be difficult to procure his presence during the trial in the event of petitioner's being enlarged on bail.
6. I have heard learned counsel representing the parties and carefully gone through the record made available.
7. Before adverting to the submissions having been made by learned counsel representing the parties vis-à-vis facts of the case, it may be noticed that vide order dated 5.3.2018, this Court had directed the bail petitioner to deposit remaining amount of Rs.
1,25,000/-. Today, during the proceedings of the case, learned counsel representing the bail petitioner while placing on record statement of account issued by the Kangra Central Co-operative Bank Limited, stated that an amount of Rs. 1,25,000/- stands deposited, which fact has been duly acknowledged by the learned Additional Advocate General. It has also come in the investigation that an amount of Rs. 2, 64,664/- stands lying deposited in the saving bank account of the bail petitioner, meaning thereby entire amount of Rs. 3, 94, 000/- allegedly deposited by the deceased Amarjit Singh stands recovered, which can be released/adjusted in favour of the Co-operative Society, whose amount is/ was definitely embezzled by the deceased Amarjeet Sharma. It is quite apparent from the suicide note contained in the diary recovered by ::: Downloaded on - 20/03/2018 23:25:58 :::HCHP 6 the police that deceased without having obtained any approval from the society, embezzled the amount and thereafter deposited the same in various companies and as such, there appears to be .
force in the arguments of learned counsel representing the petitioner that at no point of time deceased was induced/compelled by the bail petitioner to invest the amount, rather deceased Amarjeet Sharma with a view to double the amount voluntarily deposited the amount in the company owned and managed by the bail petitioner.
8. Leaving everything aside, entire amount of Rs. 3, 94, 000/- allegedly deposited by the deceased Amarjeet Sharma, stands recovered and as such, this Court sees no reason to let the bail petitioner incarcerate in jail for indefinite period, especially when he has already suffered for more than seven months.
Another apprehension expressed by learned Additional Advocate General with regard to possibility of petitioner's absconding from the trial can be met by putting the bail petitioner to stringent conditions, as has been fairly submitted by the learned counsel representing the bail petitioner.
9. It has been repeatedly held by the Hon'ble Apex Court as well as this Court in various pronouncements that freedom of an individual is of utmost importance and that cannot be allowed to be curtailed for indefinite period. In the present case also, the guilt of the petitioner is yet to be proved by the investigating ::: Downloaded on - 20/03/2018 23:25:58 :::HCHP 7 agency by leading cogent and convincing evidence and as such, this Court sees no reason to curtail the freedom of bail petitioner for indefinite period.
.
10. By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that 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. r The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; wherein it has been 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 ::: Downloaded on - 20/03/2018 23:25:58 :::HCHP 8 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 r conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."
11. 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.
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 freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion. Hon'ble Apex Court has further ::: Downloaded on - 20/03/2018 23:25:58 :::HCHP 9 held that till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. The relevant paras No.2 to 5 of the 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 rappear 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 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 ::: Downloaded on - 20/03/2018 23:25:58 :::HCHP 10 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.
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It is also necessary for the judge to consider whether the accused is a first-time 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 rcustody. 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 Re-
Inhuman Conditions in 1382 Prisons.
13. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon'ble Apex Court has held as under:
" This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a ::: Downloaded on - 20/03/2018 23:25:58 :::HCHP 11 caveat 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 a conduct whether an .
accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is r regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted."
14. The 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;::: Downloaded on - 20/03/2018 23:25:58 :::HCHP 12
(vi) likelihood of the offence being repeated;
(viii) reasonable apprehension of the witnesses being influenced; and .
(ix) danger, of course, of justice being thwarted by grant of bail.
15. In view of above, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bonds in the sum of Rs. one lac with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate, 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 him/her from disclosing such facts to the Court or the Police Officer; and
(d) He shall not leave the territory of India without the prior permission of the Court.
16. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
::: Downloaded on - 20/03/2018 23:25:58 :::HCHP 1317. 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.
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The petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma), Judge 19th March, 2018 (shankar) ::: Downloaded on - 20/03/2018 23:25:58 :::HCHP