Himachal Pradesh High Court
Rahul Basra vs State Of Himachal Pradesh on 30 August, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
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Cr. MP(M) No. 1446 of 2019
Date of Decision: 30th August, 2019
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Rahul Basra .......Petitioner
Versus
State of Himachal Pradesh .....Respondent.
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Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner: Mr. Jag Mohan Chandel & Ms. Soma
Thakur, Advocates/
For the respondent: Mr. Sudhir Bhatnagar & Mr.
Sanjeev Sood, Additional Advocate
Generals, with Mr. Kunal Thakur,
Deputy Advocate General.
__________________________________________________
Sandeep Sharma, Judge (oral):
Sequel to order dated 29.7.2019, whereby bail petitioner was ordered to be enlarged on bail in case FIR No. 259/2017, dated 5.12.2017, under Sections 406, 420 read with Section 34 of IPC, registered at police Station, Baddi, District Solan, Himachal Pradesh, ASI Nahender Jit 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 2Khata, has come present alongwith the record. Mr. Sudhir Bhatnagar, learned Additional Advocate General, has also .
placed on record fresh status report, prepared on the basis of the investigation carried out by the Investigating Agency.
Record perused and returned.
2. Close scrutiny of the record/status report, reveals that on 5.12.2017, complainant namely, Sh. Ramesh Kumar, lodged a complaint at police Station, Baddi, District Solan, H.P., alleging therein that he and his wife had deposited a sum of Rs.1,08,000/ and Rs. 91,800/ respectively, in their accounts No. 01010135000522 and 01010101000852 in the Shine Baddi Nalagarh Cooperative NATC Society Limited, but now people running the Society have fled away with their money and as such, appropriate action may be taken against the Officials of the Society i.e. Shine Baddi Nalagarh Co operative NATC Society Limited. On the basis of aforesaid complaint, formal FIR, as detailed hereinabove, came to be lodged against the present bail petitioner and other coaccused namely, Chandan Chawla, Charan Singh ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 3 and Jaswinder Singh, who were working as Chairman, Secretary and Vice Chairman, respectively in the Society.
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During investigation police found that Society concerned was registered with Registrar Cooperative Societies, Solan, H.P. on 31.01.2016. Coaccused namely, Chandan Chawla, Charan Singh,Jaswinder Singh and present bail petitioner had been rendering their services in the Society in the capacity of Chairman, Vice Chairman, Secretary and Cashier, respectively. Investigation reveals that above named members of the Society appointed agents with a view to collect money from the people of the area on daily basis.
Between 16.2.2016 to 18.7.2017 Society in question allegedly collected rupees in crores and thereafter they also refunded partial amount to the depositors. Investigation reveals that after 18.7.2017 neither any register with regard to cash received by accused from the local people was maintained nor money, as referred hereinabove, was returned to the depositors. Though, on the complaint having been filed by the depositors investigation was carried out by the Registrar ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 4 Cooperative Society, Solan, but no record was made available to the Officers of the Cooperative Society, Solan.
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Investigation reveals that members of the Managing Committee deposited the amount allegedly received from the depositors in four banks i.e. Punjab National Bank, Baddi, HDFC Bank, Baddi, Axis Bank, Baddi and Jogindra Co operative Bank Baddi. Members running management of the Society concerned, also issued cheques to the depositors, but the same were dishonoured. Though, allegedly some FDR's were made in the name of depositors, but investigation reveals that no money was subsequently received by the depositors. After lodging of the FIR, all the accused including present bail petitioner fled away and as such, no action, if any, could be taken till 25 th July, 2019 on which date, one team was sent to State of Punjab for apprehending the accused. Police has already arrested Chandan Chawla, Charan Singh, who were allegedly working as Chairman and Secretary of the Society, whereas Jaswinder Singh, who was vice Chairman made himself ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 5 available for investigation and as such, he has been not arrested till date. Present bail petitioner, who was allegedly .
rendering his services in the capacity of Cashier after having obtained anticipatory bail from this Court, presented himself before the Investigating Agency for investigation.
On 9.8.2019, Investigating Officer informed that though bail petitioner has joined the investigation, but he is not co operating and as such, this Court adjourned the matter to 19.8.2019 with a specific direction to the bail petitioner to cooperate in the investigation and make available record, if any, with him to the Investigating Officer, enabling him to conclude the proceedings. On 27.8.2019, this Court was informed that record made available by the bail petitioner was not found to be genuine because same stood already rejected by the Assistant Registrar, Cooperative Society, Solan. However on that day, Investigating Officer fairly informed this Court that a sum of Rs. 11 lakh has been deposited by the bail petitioner, who on that day sought further time to deposit Rs. 9 lac on or before the next date of ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 6 hearing. Today, during the proceedings of the case, Investigating Officer has fairly stated that Rs. 9 lakh in .
addition to Rs. 11 lakh already deposited by the bail petitioner, has been deposited and as such, in total sum of Rs. 20 lacs have been deposited by the bail petitioner.
3. Mr. Sudhir Bhatnagar, learned Additional by the police more than r to Advocate General stated that as per the complaint received Rs. 60 lakhs have been misappropriated by the accused, named in the FIR, and till date, they are not disclosing true facts, enabling the Investigating Agency to conclude the investigation and as such, prayer made in the present petition deserve out right rejection. Learned Additional Advocate General further contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency, rather needs to be dealt with severely.
While acknowledging the factum with regard to receipt of sum of Rs. 20 lakhs from the bail petitioner, learned Additional Advocate General contended that since ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 7 substantial amount is yet to be recovered, prayer having been made on behalf of the petitioner at this stage may not .
be considered because there is every likelihood of his fleeing from justice in the event of his being enlarged on bail.
4. Learned counsel representing the bail petitioner while refuting the aforesaid submissions having been made that as per to by learned Additional Advocate General, strenuously argued the own case of the Investigating Agency, present bail petitioner was rendering his services in the Society concerned in the capacity of Cashier and as such, he cannot be held liable for money allegedly misappropriated by the managing committee. They further contended that though there is nothing on record to connect the present bail petitioner with the crime alleged to have been committed by him, but to show his bonafides, bail petitioner has already deposited a sum of Rs. 20 lakhs and as such, his prayer for grant of bail deserves to be considered sympathetically.
Learned counsel for the petitioner further contended that since bail petitioner has already joined the investigation, his ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 8 custodial interrogation is not required, especially when record available with him has been handed over to the .
Investigating Agency. Learned counsel for the petitioner further contended that bail petitioner being first offender deserve to be enlarged on bail, especially when guilt, if any, of him is yet to be proved, in accordance with law.
5. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that present bail petitioner was working as a Cashier in the Shine Baddi Nalagarh NATC, Cooperative Society, who allegedly misappropriated a sum of Rs. 65 lakh of the depositors. The Chairman and Secretary of aforesaid Cooperative Society, who being overall Incharge of the Society, are/were responsible for alleged misappropriation of money, are already behind the bars. It is none of the case of the Investigating Agency that present bail petitioner misappropriated the funds of the Society because admittedly there is no complaint, if any, filed by the members of the Society that present bail petitioner misappropriated the ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 9 funds. Action, if any, came to be taken against the officials of the Society on the complaint of depositors, who alleged .
that society concerned after collecting their money closed the Society and as such, it would be premature to conclude at this stage that entire sum of Rs. 6065 lakh was misappropriated by the present bail petitioner, who was admittedly rendering his services in the capacity of Cashier.
Since bail petitioner has already deposited the substantial amount I.e .Rs. 20 lakh and he has been rendering necessary cooperation with the Investigating Agency, this Court sees no necessity for his custodial interrogation.
Moreover, as has been noticed hereinabove, main accused are already behind the bars and as such, no fruitful purpose would be served in case the present bail petitioner is sent behind the bars, 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 met by putting bail petitioner ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 10 to stringent conditions, as has been fairly admitted by the learned counsel representing the bail petitioner.
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6. It has been repeatedly held by Hon'ble Apex Court as well as this Court in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. Investigation in the case is complete and there is no material placed on record by the investigating Agency suggestive of the fact that in the event of petitioner's being enlarged on bail, he may flee from justice and as such, prayer made on behalf of the bail petitioner deserves to be considered.
7. 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 a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 11 grant of bail, 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. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. 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.::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 12
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 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 ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 13 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 ReInhuman Conditions in 1382 Prisons
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 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 ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 14 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. 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 ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 15 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.
10. The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC r to 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.
11. Consequently, in view of the above, order dated 29.7.2019, passed by this Court, is made absolute, subject to ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 16 his furnishing personal bond in the sum of Rs. Ten lakh with one local surety in the like amount to the satisfaction of .
the Investigating Officer, 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 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.
e. He shall surrender passport, if any, held by him.
12. It is clarified that if the petitioner misuses 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.
13. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP 17 shall remain confined to the disposal of this application alone.
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The bail petition stands disposed of accordingly.
Copy dasti.
(Sandeep Sharma), Judge 30th August, 2019 (shankar) ::: Downloaded on - 29/09/2019 02:54:43 :::HCHP