Punjab-Haryana High Court
Surinder Kumar Berry vs State Of Punjab on 18 September, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2023:PHHC:122451
CRM-M-31873-2023 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-31873-2023 (O&M)
Reserved on: 14.09.2023
Pronounced on: 18.09.2023
Surinder Kumar Berry
... Petitioner(s)
Versus
State of Punjab
...Respondent (s)
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present:- Mr. APS Deol, Sr. Advocate with
Mr. Mandeep Singh Gill, Advocate
for the petitioner(s).
Mr. Ferry Sofat, Addl.A.G., Punjab.
Mr. P.S. Ahluwalia, Advocate for the complainant.
***
ANOOP CHITKARA, J.
FIR Dated Police Station Sections No. 11 16.08.2022 Vigilance Bureau, 409, 420, 467, 468, 471, 201, 120-B IPC Ludhiana, District and Sections 7, 7A, 8, 12, 13(2) of the Ludhiana Prevention of Corruption Act, 1988.
1. The petitioner, apprehending arrest in the FIR, captioned above, for wrongful allotment of tenders and causing loss to the tune of Rs.28 lacs to the public exchequer, has come up before this Court under Section 438 CrPC seeking anticipatory bail.
2. As per para 14 of the bail petition, the accused declares that he had no criminal antecedents.
3. Petitioner's counsel prays for bail by imposing any stringent conditions including declaration of assets by the petitioner and their family members, and are also voluntarily agreeable to the condition that till the conclusion of the trial, the petitioner shall keep only one mobile number, which is mentioned in AADHAR card, if any, and within fifteen days undertakes to disconnect all other mobile numbers. The petitioner contends that custodial interrogation and pre-trial incarceration would cause an irreversible injustice to the petitioner and family.
4. The State's counsel opposes the bail and states that considering the allegations, 1 of 7 ::: Downloaded on - 19-09-2023 01:51:03 ::: Neutral Citation No:=2023:PHHC:122451 CRM-M-31873-2023 2 the petitioner's custodial interrogation is necessary.
REASONING:
5. The petitioner seeks bail primarily on the ground that the loss which was caused to the exchequer was at the behest of PUNGRAIN and not PUNSUP. The petitioner was posted as District Food and Supply Controller-cum-Manager, PUNGRAIN for brief period w.e.f. 16.9.2021 till his retirement on 28.2.2022, whereas the alleged loss was caused in the financial year 2020-21.
6. Based on reply dated 16.8.2023 filed by the State by way of affidavit of Dy.S.P., Vigilance Bureay, Ludhiana, the case of the prosecution against the petitioner is that a scam of allotment of labour, cartage tenders on the basis of manipulated documents had taken place, in which false registration numbers of scooters, cars, motorcycles etc. were supplied in place of trucks for the year 2020-21 apart from the allegations of misuse of Government funds, forgery of gate passes and misappropriation of food grains as well as illegal transportation of foodgrains from outer States without MSP and selling and fulfilling the shortage by mixing the said foodgrains brought from outer States and thus, causing huge loss to the State exchequer.
7. As per paragraph no.11 of the aforesaid affidavit, the role assigned to the petitioner is that he was very close to the then Cabinet Minister Bharat Bhushan Ashu, who was Minister of Food and Supplies and they got linked the Mandis of Lalton and Dhandra with the rice mills situated at far away places. They obtained bribe of Rs.2 lac from each sheller owner as well as bribe of Rs.3 and Rs.10 per bag for placing the paddy bags in their sheller. Other allegations are of entering into a criminal conspiracy with the shellers, who had cheated the Government.
8. It remains undisputed that the scam pertained to the year 2020-21 and regarding shortages and wrongful losses to the tune of Rs.28 lacs, the petitioner was not posted with PUNGRAIN but was posted with PUNSUP at the relevant time. Rather, the petitioner was posted as District Food and Supply Controller-cum-Manager, PUNGRAIN w.e.f. 16.9.2021 i.e. after the period of scam till his retirement. Regarding other allegation of shortage of stocks and illegal transportation of foodgrains from outer States without MSP, custodial interrogation of the petitioner would not be required. Regarding the allegation that the millers had given wrong vehicle numbers, to be qualified for tenders, needless to say that the prosecution has not shown any notification, circular or order that it was petitioner's duty to personally verify each and every vehicle number either through VAHAN app or by checking it physically from records of registration
2 of 7 ::: Downloaded on - 19-09-2023 01:51:03 ::: Neutral Citation No:=2023:PHHC:122451 CRM-M-31873-2023 3 authorities. It is those people who had done such tampering and shown wrong numbers who are responsible at this stage, the kind of evidence which has been placed before this Court, the petitioner cannot be held responsible for the same.
9. Given the penal provisions imposed and the sentence provided by the Legislature, the nature of allegations coupled with the fact that the petitioner is a first offender, and one of the relevant factors would be to provide an opportunity to course correct. Even a prima facie perusal of paragraph 5 of the bail petition needs consideration for bail.
10. In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Constitutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such person on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application. The courts can release on bail, provided the circumstances then prevailing require, and a change in the fact situation. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh when considering the question of jail. So also, the heinousness of the crime. In Gudikanti Narasimhulu v Public Prosecutor, (1978) 1 SCC 240, (Para 16), Supreme Court held that the delicate light of the law favors release unless countered by the negative criteria necessitating that course. In Prahlad Singh Bhati v NCT, Delhi, (2001) 4 SCC 280, Supreme Court highlighted one of the factors for bail to be the public or the State's immense interest and similar other considerations. In Dataram Singh v State of Uttar Pradesh, 2018:INSC:107 [Para 7], (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously, compassionately, and in a humane manner. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
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11. The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal v. State (NCT of Delhi) 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, Supreme Court holds that while exercising power Under Section 438 of the Code, the Court is duty-bound to strike a balance between the individual's right to personal freedom and the right of investigation of the police. While exercising utmost restraint, the Court can impose conditions countenancing its object as permissible under the law to ensure an uninterrupted and unhampered investigation.
12. Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail, subject to the following terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
13. In Madhu Tanwar v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M- 27097-2023, decided on 29-05-2023, this court observed, [10] The exponential growth in technology and artificial intelligence has transformed identification techniques remarkably. Voice, gait, and facial recognition are incredibly sophisticated and pervasive. Impersonation, as we know it traditionally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from justice, then in such cases, appropriate conditions can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss.
[21] In this era when the knowledge revolution has just begun, to keep pace with exponential and unimaginable changes the technology has brought to human lives, it is only fitting that the dependence of the accused on surety is minimized by giving alternative options. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate.
14. Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above, in the following terms:
(a). Petitioner to furnish personal bond of Rs. Ten thousand (INR 10,000/); AND 4 of 7 ::: Downloaded on - 19-09-2023 01:51:03 ::: Neutral Citation No:=2023:PHHC:122451 CRM-M-31873-2023 5
(b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the satisfaction of the concerned investigator, and in case of non-availability, to any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned officer/court must satisfy that if the accused fails to appear in court, then such surety can produce the accused before the court.
OR
(b). Petitioner to hand over to the concerned investigator a fixed deposit for Rs. Ten thousand only (INR 10,000/-), with the clause of automatic renewal of the principal and the interest reverting to the linked account, made in favor of the 'Chief Judicial Magistrate' of the concerned district, or blocking the aforesaid amount in favour of the concerned 'Chief Judicial Magistrate'. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be permissible for the petitioner to prepare an account payee demand draft favouring concerned Chief Judicial Magistrate for a similar amount.
(c). Such court shall have a lien over the funds until the case's closure or discharged by substitution, or up to the expiry of the period mentioned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the entire amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.
(d). The petitioner is to also execute a bond for attendance in the concerned court(s) as and when asked to do so. The presentation of the personal bond shall be deemed acceptance of the declarations made in the bail petition and all other stipulations, terms, and conditions of section 438(2) of the Code of Criminal Procedure, 1973, and of this bail order.
(e). While furnishing personal bond, the petitioners/applicants shall mention the following personal identification details:
1. AADHAR number
2. Passport number, (If available), when the court attesting the bonds thinks appropriate or considers the accused as a flight risk.
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3. Mobile number (If available)
4. E-Mail id (If available)
15. The petitioner is directed to join the investigation as and when called by the Investigator. The petitioner shall be in deemed custody for Section 27 of the Indian Evidence Act. The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the investigation at all further stages as required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail. Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM, let off before 6 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.
16. The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
17. Petitioner to comply with their undertaking made in the bail petition, made before this court through counsel as reflected at the beginning of this order or in earlier orders. If the petitioner fails to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the victim/complainant may file any such application for the cancellation of bail, and the State shall file the said application.
18. The bail bonds shall remain in force throughout the trial and after that in Section 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of conditions.
19. The conditions mentioned above imposed by this Court are to endeavour that the accused does not influence witnesses. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Petition (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed".
20. Any Advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order in any 6 of 7 ::: Downloaded on - 19-09-2023 01:51:03 ::: Neutral Citation No:=2023:PHHC:122451 CRM-M-31873-2023 7 language that the petitioner understands.
21. If the petitioner finds bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.
22. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation as per law.
23. In case the Investigator/Officer-In-Charge of the concerned Police Station arraigns another section of any penal offence in this FIR, and if the new section prescribes maximum sentence which is not greater than the sections mentioned above, then this bail order shall be deemed to have also been passed for the newly added section(s). However, suppose the newly inserted sections prescribe a sentence exceeding the maximum sentence prescribed in the sections mentioned above, then, in that case, the Investigator/Officer-In-Charge shall give the petitioner notice of a minimum of seven days providing an opportunity to avail the remedies available in law.
24. Any observation made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
25. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.
26. There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.
Petition allowed in aforesaid terms. All pending applications, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
September 18, 2023
AK
Whether speaking/reasoned : Yes
Whether reportable : No
Neutral Citation No:=2023:PHHC:122451
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