Himachal Pradesh High Court
Gurpreet Singh vs State Of Himachal Pradesh on 1 March, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr.MP(M) Nos. 87, 35, 36 and 37 of 2018
.
Decided on: 28.2.2018
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1.Cr.MP(M) No. 87 of 2018
Gurpreet Singh ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
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2.Cr.MP(M) No. 35 of 2018
Arshad Ahmad ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
3.Cr.MP(M) No. 36 of 2018
Dharamvir Singh ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
4.Cr.MP(M) No. 37 of 2018
Rajesh Kumar Pandey ...........Petitioner
Versus
State of Himachal Pradesh ..........Respondent
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the Petitioner(s) : Mr. Surender K. Sharma, Advocate, for
the petitioner in Cr.MP(M) No. 87 of 2018
and Mr. Rupinder Singh, Advocate, for
the petitioner(s) in Cr.MP(M) Nos. 35 to
37 of 2018.
1
Whether the reporters of the local papers may be allowed to see the judgment?
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2
For the Respondent(s) : Mr. Dinesh Thakur, Additional Advocate
General and Mr. R.R. Rahi, Deputy
.
Advocate General
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Sandeep Sharma, Judge (oral):
Bail petitioners, who are in judicial custody, have approached this Court, by way of aforesaid petitions filed under Section 439 of Cr.PC, praying therein for grant of regular bail in case FIR No. 100/17 dated 22.11.2017, under Sections 420,467, 468 and 471 of IPC, registered at PS Kala Amb, District Sirmaur, H.P.
2. Sequel to order dated 31.1.2018, ASI Hem Raj, PS Kala Amb, District Sirmaur, H.P., has come present along with records. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the basis of investigation carried out by the Investigating agency.
3. Careful perusal of the record/status report made available to this Court, suggest that FIR, detailed hereinabove, came to be registered against the above named bail petitioners at the behest of the complainant namely Sh. Rupesh Kumar, Branch Manager, PNB Kheri, who alleged that cheque bearing No.767529, dated 14.11.2017, amounting to Rs. 3 crores, purported to be issued by A.K. Traders in favour of M/s Spark NGO, was presented in the branch for clearance, however fact remains that on inquiry Sh. A.K.Panwar, proprietor of M/s A.K. Traders informed that ::: Downloaded on - 01/03/2018 23:01:22 :::HCHP 3 no such cheque has been ever issued in favour of M/s Spark NGO. Since, M/s Spark Ngo obtained/managed the aforesaid cheque, complainant .
requested the investigating Agency to investigate the matter and file case against the culprits. During investigation, police took into custody the record pertaining to account No.4503000100044775 and also interrogated Pardeep Kumar, who had been running the affairs of NGO, referred hereinabove. During investigating, Pradeep Kumar revealed that person namely Sh. Gurpreet Singh, had given him aforesaid cheque at Kala Amb. Police also interrogated Sh. Gurpreet Singh, who disclosed that person namely Sh. Amardeep Singh got him introduced to Dharamvir Singh, R/o of Delhi. On 24.11.2017, police arrested Gurpreet Singh, Amardeep Singh and Dharamvir Singh and since then they are behind the bars, whereas, Pradeep Kumar obtained anticipatory bail from the Co-ordinate bench of this Court i.e. Cr.MP(M) No.1582 of 2017, which came to be confirmed on 4.1.2018. Persons named hereinabove have further disclosed that one Sh. Rajesh Kumar Pandey, who had been rendering services as Clerk in the postal Department at Delhi came into their contact during demonetization and since then they had been indulging in preparation and manufacturing of fake cheques and National Saving Certificates. Police also arrested person namely Arshad , who in lieu of money paid to him by the bail petitioners, named ::: Downloaded on - 01/03/2018 23:01:22 :::HCHP 4 hereinabove used to bring fake cheques. On 26.11.2017, police arrested accused namely Rajesh Kumar Panday. Subsequently, on 5.12.2017 .
Investigating Agency also arrested another co-accused Arshad Ahmad, who at first instance denied his involvement in the crime alleged to be committed by the persons named above in the FIR, but subsequently, got one printer, laptop and other material allegedly used for preparation of fake cheques, recovered from Delhi, which have been further sent to SFSL, Junga for chemical analysis .
4. Mr. Rupinder Singh, learned counsel representing the bail petitioners, while referring to the status report placed on record by the investigating agency, forcibly contended that no case is made out against the bail petitioners because no fake cheques have been recovered from their custody. Learned counsel further contended that otherwise also cheque allegedly presented in the bank was not encashed and as such, no pecuniary loss, if any, has been caused to the bank. Mr. Rupinder Singh, learned counsel, further contended that bare perusal of status report nowhere reveals that incriminating evidence, if any, has been collected so far by the investigating agency against the bail petitioners and as such, they cannot be kept in illegal detention for indefinite period, especially when investigation in the case is complete and nothing is required to be recovered from the bail petitioners. While ::: Downloaded on - 01/03/2018 23:01:22 :::HCHP 5 inviting attention of this Court to the order dated 4.1.2018, passed by the Co-ordinate Bench of this Court in Cr.MP(M) No.1582 of 2017, titled as .
Pradeep Singh versus State of Himachal Pradesh, learned counsel contended that main accused, who had presented the alleged fake cheque in the bank has been already enlarged on bail and as such, other accused named in the same FIR also deserves to be enlarged on bail.
Lastly, Mr. Rupinder Singh, learned counsel representing the petitioners, named hereinabove, forcibly contended that it is well settled by now that freedom of an rindividual cannot be curtailed for an indefinite period during the pendency of trial and he/she is deemed to be innocent till the time guilt, if any, of his/her is proved in accordance with law.
5. To the contrary, Mr. Dinesh Thakur, learned Additional Advocate General, while opposing the aforesaid prayer for grant of bail having been made on behalf of the bail petitioners, strenuously argued that keeping in view the gravity of offence allegedly committed by the bail petitioners, they do not deserve to be shown any leniency, rather needs to be dealt with severely. Learned Additional Advocate General while inviting attention of this Court to the status report, contended that it stand duly established on record that all the bail petitioners are the part of racket, who used to prepare fake cheques and bonds of the different banks. While fairly acknowledging the fact that investigation in the case is ::: Downloaded on - 01/03/2018 23:01:22 :::HCHP 6 almost complete and nothing is required to be recovered from the bail petitioners herein, learned Additional Advocate General contended that .
report of SFSL is still awaited. He further stated that there is possibility of involvement of other persons as have been named in the status report and as such, enlargement of bail petitioners on bail at this stage may cause great prejudice to the investigation of the case, which is at crucial stage, however, fact remains that learned Additional Advocate General fairly admitted that another co-accused namely Pardeep Kumar has been already enlarged on bail by the Co-ordinate Bench of this Court.
Lastly, learned Additional Advocate General contended that all the bail petitioners except Gurpreet Singh hails from other State and as such, it may be difficult to procure their presence during the trial in the event of their being enlarged on bail and as such ,bail petitions may be rejected.
6. I have heard learned counsel for the parties and gone through the record carefully.
7. Record/status report clearly reveals that investigation qua all the bail petitioners is almost complete and nothing is required to be recovered from them. All the bail petitioners are in judicial custody for quite considerable time and as such, this Court finds considerable force in the argument of learned counsel for the bail petitioners that custodial interrogation of bail petitioners is not required. Non-receipt of report of ::: Downloaded on - 01/03/2018 23:01:22 :::HCHP 7 SFSL cannot be a ground to keep the bail petitioners in custody for indefinite period because laptop, printer and mobile phones allegedly .
used by the bail petitioners for preparing/manufacturing fake cheques and bonds etc. have already been taken into custody by the investigating agency. Otherwise also, bare perusal of status report nowhere indicate the actual role, if any, played by the bail petitioners towards preparation of fake cheques. Though, there is reference in the status report with regard to involvement of bail petitioners in similar crimes in past also, but no evidence in this regard has been made available on record.
8. Leaving everything aside, this Court cannot loose the sight of the fact that freedom of an individual is of utmost importance and cannot be allowed to be curtailed for indefinite period, especially when guilt, if any, is yet to be proved, in accordance with law. In the present case challan is yet to be filed by the investigating agency. Repeatedly, it has been held by the Hon'ble Apex Court as well as this Court that gravity of offence allegedly committed by the accused cannot be a sole ground to deny the bail, rather other factors are also required to be taken into consideration while considering the prayer for grant of bail.
9. Most importantly, in the case at the hand, person namely Pradeep Kumar , who had presented forged cheque amounting to Rs. 3 ::: Downloaded on - 01/03/2018 23:01:22 :::HCHP 8 crores in the bank has been already enlarged on bail. Perusal of order dated 4.1.2018, which has been placed on record by the bail petitioners .
passed in Cr.MP(M) No.1582 of 2017, clearly suggest that learned Deputy Advocate General, on the instructions of the investigating Officer, categorically stated before the court that since bail petitioner has joined the investigation, his custody is not required for the purpose of investigation. Factum with regard to passing of order dated 4.1.2018 by the Co-ordinate Bench of this Court in the case referred hereinabove has not been disputed by the learned Additional Advocate General, rather it has been informed at the Bar by the learned Additional Advocate General that order dated 4.1.2018, passed by Co-ordinate Bench of this Court has been accepted. In view of above, this Court finds considerable force in the argument of learned counsel representing the petitioners that other co-accused named in the FIR, who happened to be the bail petitioners before this Court, also deserve to be enlarged on bail on the same analogy.
10. Another apprehension expressed by learned Additional Advocate General with regard to petitioner's absconding from trial in the event of their being enlarged on bail can be met by putting them to stringent conditions, as has been fairly stated by learned counsel representing the bail petitioners.
::: Downloaded on - 01/03/2018 23:01:22 :::HCHP 911. 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 held that till the time guilt of the accused is not proved in accordance with law, he is deemed to be innocent. 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 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 ::: Downloaded on - 01/03/2018 23:01:22 :::HCHP 10 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 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 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 Re-Inhuman Conditions in 1382 Prisons."
12. 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. 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:-
::: Downloaded on - 01/03/2018 23:01:22 :::HCHP 11" 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 an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."
13. 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.
14. Law with regard to grant of bail is now well settled. The apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra ::: Downloaded on - 01/03/2018 23:01:22 :::HCHP 12 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 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 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 ::: Downloaded on - 01/03/2018 23:01:22 :::HCHP 13 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 there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is r entitled to an order of bail."
(Emphasis supplied)
15. In Sundeep Kumar Bafna versus State of Maharashtra & another (2014)16 Supreme Court Cases 623, wherein it has been held as under:-
"8. Some poignant particulars of Section 437 CrPC may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being "brought before a Court", the present provision postulates the accused being "brought before a Court other than the High Court or a Court of Session" in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh vs State( Delhi Admn) (1978) 1 SCC 118, there is no provision in the CrPC dealing with the production of an accused before the Court of Session or the High Court. But it must also be immediately noted that no provision categorically prohibits the production of an accused before either of these Courts. The Legislature could have easily enunciated, by use of exclusionary or exclusive terminology, that the superior Courts of Sessions and High Court are bereft of this jurisdiction or if they were so empowered under the Old Code now stood denuded thereof. Our understanding is in conformity with Gurcharan Singh, as perforce it must. The scheme of the CrPC plainly provides that bail will not be extended to a ::: Downloaded on - 01/03/2018 23:01:22 :::HCHP 14 person accused of the commission of a non-bailable offence punishable with death or imprisonment for life, unless it is apparent to such a Court that it is incredible or beyond the realm of reasonable doubt that the accused is guilty. The enquiry of the .
Magistrate placed in this position would be akin to what is envisaged in State of Haryana vs Bhajan Lal, 1992 (Supp)1 SCC 335, that is, the alleged complicity of the accused should, on the factual matrix then presented or prevailing, lead to the overwhelming, incontrovertible and clear conclusion of his innocence. CrPC severely curtails the powers of the Magistrate while leaving that of the Court of Session and the High Court untouched and unfettered. It appears to us that this is the only logical conclusion that can be arrived at on a conjoint consideration of Sections 437 and 439 of the CrPC. Obviously, in order to complete the picture so far as concerns the powers and limitations thereto of the Court of Session and the High Court, Section 439 would have to be carefully considered. And when this is done, it will at once be evident that the CrPC has placed an embargo against granting relief to an accused, (couched by us in the negative), if he is not in custody. It seems to us that any persisting ambivalence or doubt stands dispelled by the proviso to this Section, which mandates only that the Public Prosecutor should be put on notice. We have not found any provision in the CrPC or elsewhere, nor have any been brought to our ken, curtailing the power of either of the superior Courts to entertain and decide pleas for bail. Furthermore, it is incongruent that in the face of the Magistrate being virtually disempowered to grant bail in the event of detention or arrest without warrant of any person accused of or suspected of the commission of any non-bailable offence punishable by death or imprisonment for life, no Court is enabled to extend him succour. Like the science of physics, law also abhors the existence of a vacuum, as is adequately adumbrated by the common law maxim, viz. 'where there is a right there is a remedy'. The universal right of personal liberty emblazened by Article 21 of our Constitution, being fundamental to the very existence of not only to a citizen of India but to every person, cannot be trifled with merely on a presumptive plane. We should also keep in perspective the fact that Parliament has carried out amendments to this pandect comprising Sections 437 to 439, and, therefore, predicates on the well established principles of interpretation of statutes that what is not plainly evident from their reading, was never intended to be incorporated into law. Some salient features of these provisions are that whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable offence and consequently arrested or detained without warrant, Section 439 empowers the Session Court or High Court to grant bail if such a person is in custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word 'custody' the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power of the Magistrate to ::: Downloaded on - 01/03/2018 23:01:22 :::HCHP 15 grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is .
also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of 'Committal of cases to the Court of Session' because of a possible hiatus created by the CrPC."
16. 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;
(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.
17. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioners have carved out a case for grant of bail, accordingly, the above captioned petitions are allowed and the petitioners are ordered to be enlarged on bail in aforesaid FIR, subject to their furnishing personal bonds in the sum of Rs. two lac with one local ::: Downloaded on - 01/03/2018 23:01:22 :::HCHP 16 surety in the like amount each to the satisfaction of concerned Chief Judicial Magistrate, with following conditions:
.
(a) They 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) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) They 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) They shall not leave the territory of India without the prior permission of the Court.
18. It is clarified that if any of 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.
19. 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 petitions stand accordingly disposed of.
Copy dasti.
28th February, 2018 (Sandeep Sharma),
manjit Judge
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