__________________________________________________________ vs State Of Himachal Pradesh on 24 October, 2019

[Cites 22, Cited by 0]

Himachal Pradesh High Court

__________________________________________________________ vs State Of Himachal Pradesh on 24 October, 2019

Bench: Sandeep Sharma

             IN THE HIGH COURT OF HIMACHAL PRADESH,
                             SHIMLA
                                     Cr.MP(M) No. 1899 of 2019




                                                                                     .
                                         Decided on: 24.10.2019





     __________________________________________________________
    Anil Kumar Jain                            ........ Petitioner





                                                   Versus
    State of Himachal Pradesh                    .....Respondent
      _________________________________________________________
    Coram:





    Hon'ble Mr. Justice Sandeep Sharma, Judge.
    Whether approved for reporting? 1

    For the petitioner:                     Mr. Deepak Kaushal, Advocate.
    For the respondent:

                           Mr. Sanjeev Sood, Additional Advocate

                           General.
    __________________________________________________________
    Sandeep Sharma, Judge (oral):

Bail petitioner namely, Anil Kumar Jain, who is behind the bars since 18.7.2019, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.9/2016, dated 3.4.2016, under Sections 420, 468, 471, 406, 409, 411, 201, 217, 218, 120B of IPC, Section 13(1)c and 13(1)d(ii) of Prevention of Corruption Act and Sections 5 & 7 of H.P. Prevention of Specific Corrupt Practices 1 Whether the reporters of the local papers may be allowed to see the judgment?

::: Downloaded on - 24/10/2019 20:27:09 :::HCHP 2

Act, registered at police Station, State CID Bharari, Shimla, District Shimla, H.P. .

2. Sequel to order dated 23.10.2019, Mr. Sandeep Dhawal, SP has come present alongwith the record. Mr. Sanjeev Sood, learned Additional Advocate General has also placed on record status report, prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned.

3. Mr. Sanjeev Sood, learned Additional Advocate General, on the instructions of Investigating Officer, who is present in Court, fairly stated that investigation in the case is complete and at this stage, nothing is required to be recovered from the bail petitioner. Learned Additional Advocate General further acknowledged that coaccused namely, Vinay Kumar Sharma, Vivek Lal, Shailander Nath, Aran Ahuja, Tek Chand ETO (retd.), Goutam Seth and Rajat Garg have already been enlarged on bail. Lastly, learned Additional Advocate General contended that in case this Court intends to enlarge the bail petitioner on bail, he may be put to stringent conditions.

::: Downloaded on - 24/10/2019 20:27:09 :::HCHP 3

4. Having heard learned counsel representing the parties and perused the record, this Court finds that .

investigation in the case is complete and at this stage, nothing is required to be recovered from the bail petitioner as such, sees no reason to allow the bail petitioner to incarcerate in jail for indefinite period, especially when guilt, if any, of him is yet to be proved, in accordance with law. Apprehension expressed by learned Additional Advocate General with regard to petitioner fleeing from justice in the event of his being enlarged on bail, can be best met by putting bail petitioner to stringent conditions, as has been fairly admitted by the learned counsel representing the bail petitioner.

5. It has been repeatedly held by Hon'ble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved, in accordance with law.

6. 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 ::: Downloaded on - 24/10/2019 20:27:09 :::HCHP 4 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 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 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 ::: Downloaded on - 24/10/2019 20:27:09 :::HCHP 5 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 r appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a firsttime offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.

5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused ::: Downloaded on - 24/10/2019 20:27:09 :::HCHP 6 person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as .

noticed by this Court in In ReInhuman Conditions in 1382 Prisons

7. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail.

Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

8. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under: " The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial ::: Downloaded on - 24/10/2019 20:27:09 :::HCHP 7 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."

9. The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

::: Downloaded on - 24/10/2019 20:27:09 :::HCHP 8

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

character, behaviour, means, position and

(v) 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. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs.

1,00,000/ (Rs. one lakh) with one surety in the like amount, to the satisfaction of the learned trial Court, with following conditions:

a. he shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; b. he shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

c. he shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him 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.

e. he shall surrender passport, if any, held by him.

::: Downloaded on - 24/10/2019 20:27:09 :::HCHP 9

11. It is clarified that if the petitioner misuse his liberty or violates any of the conditions imposed upon him, the .

investigating agency shall be free to move this Court for cancellation of the bail.

12. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall r to remain confined to the disposal of this application alone.

The bail petition stands disposed of accordingly.

Copy dasti.

(Sandeep Sharma), Judge 24th October, 2019 (shankar) ::: Downloaded on - 24/10/2019 20:27:09 :::HCHP

Unlock Advanced Research with PRISMAI

Himachal Pradesh High Court