Jammu & Kashmir High Court
Sajjad Ahmed S/O Shams-Ud-Din Bhat vs Central Bureau Of Investigations ... on 31 March, 2023
Author: Mohan Lal
Bench: Mohan Lal
1
Sr. No. 95
HIGH COURT OF JAMMU & KASHMIR AND LADAKH
AT JAMMU
B. A No. 53/2023
Reserved on : 14.03.2023
Pronounced on: 31.03.2023
Sajjad Ahmed S/o Shams-Ud-Din Bhat,
R/O Village Chachawah Tehsil Gool, District Ramban,
(presently lodged in District Jail, Jammu). ....Petitioner(s)
Through:-Mr. Aseem Sawhney, Advocate.
Versus
1. Central Bureau of Investigations through SP CBI ACB, Jammu,
2. Investigating Officer in FIR No. RC0042023A003, CBI ACB Jammu.
.....Respondent(s)
Through:- Ms. Monika Kohli, Sr. AAG CORAM: HON‟BLE MR. JUSTICE MOHAN LAL , JUDGE OR DER 31-03-2023
1. Petitioner/accused arrested on 08.02.2023 in FIR No. RC0042023A003 CBI/ACB Jammu for commission of offences punishable under Section 7 of the Prevention of Corruption Act 1988 r/w 120-B IPC and presently lying in judicial custody (for the last more than 1 ½ months) in District Jail Jammu has claimed bail on the grounds, that the petitioner is respectable citizen of the nation and resident of J&K and is a Govt. Servant working as Chief Accounts Officer in JKTDC; that the petitioner is innocent and has not committed any offence, on the contrary the complainant is trying to arm twist him with the connivance of certain CBI officers to settle some personal scores which shall be revealed at the stage of cross-examination and defense in the trial, however, by keeping the petitioner under detention is precluding him from preparing the case for trial/defense which is a "pre-trial punishment"; that the personnel of CBI ACB on 8.2.2023 arrested the petitioner in a false and fabricated case, neither the grounds of arrest nor memo of arrest was prepared and provided to him, and his arrest is in violation to the arrest guidelines as envisaged by the celebrated judgment of "D K Basu vs State of WB"; that later when the bail application was moved before the Ld. Special Judge CBI Jammu, it was made known that FIR No. RC0042023A003 CBI ACB, Jammu u/s 7 PC Act 1988 read with 120 B IPC stands registered against the petitioner on the basis of some trap case, which 2 B. A No. 53/2023 was botched up and fabricated; that the petitioner is under arrest since 8.2.2023 and alongwith co accused were remanded to judicial custody on 9.2.2023, petitioner has been arrested in violation of Section 41-A of Cr.PC which envisages that a notice be issued in such cases and it is settled law that arrest must not be resorted to in case of grave requirement that too after following due procedure under law, but in the present case the settled law as well as statue has not been followed, so much so, that the Hon'ble Supreme Court has envisaged in "Arnesh Kumar vs State of Bihar" that in cases of offences entailing punishment upto 7 years the person must not be arrested and in another celebrated judgment of the Apex Court in "Sanjay Chandra v/s CBI" (2G Spectrum case) the principle of Bail not jail has been reiterated by the Apex Court, which has been fortified in "Arnab Manoranjan Goswami Vs State of Maharashtra" and "P Chidambaram Vs CBI/ED"; that the petitioner is a Govt. employee of middle age and the only bread earner of the family having a wife, small kid and the parents to support, and with the incrimination of the petitioner the entire family is suffering, therefore, the petitioner deserves to be granted bail, as neither the petitioner is a criminal nor a flight risk and would undertake to follow all the conditions of the Hon‟ble court in case he is granted bail.
2. Respondents/CBI per-contra, by filing the objections have opposed the bail on the grounds, that case FIR No. RC0042023A0003 dated 08.02.2023 has been registered by the CBI, Jammu u/s120-B of IPC r/w Section 7 of the Prevention of Corruption Act 1988 on the basis of complaint dated 07.02.2023 lodged by one Pankaj Kumar Verma S/o Sh. Sarvan Kumar R/o Lotus Villa, 232 Sector-1, Jalpura Greater Noida UP, alleging demand of bribe of Rs. 2.30 lacs by accused Sajad Ahmed Chief Accounts Officer JKTDC through Shokat Ali for processing of payment in respect of bills submitted by the complainant, that a trap was laid and both the accused persons namely, Sajjad Ahmed Chief Accounts Officer JKTDC and Shokat Ali Lecturer Govt. Polytechnic College Jammu were caught red-handed while demanding and accepting bribe of Rs.2.30 lacs from the complainant in presence of independent witnesses and were subsequently arrested on 08.02.2023 and taken into custody after following all the legal procedure. It is contended, that considering the gravity of the offence, the learned Special Judge Anti Corruption (CBI Cases) Jammu has rejected the bail application 3 B. A No. 53/2023 of the accused vide order dated 23.02.2023 and there is every likelihood that if the accused is released on bail at this stage, he may tamper with prosecution evidence and influence the witnesses as he being a Chief Accounts Officer in JKTDC Jammu and is a highly influential, the accused has not carved out exceptional or special circumstances for his enlargement on bail, the bail application is not maintainable, as such deserves to be out rightly rejected and dismissed.
3. Mr. Aseem Sawhney, Ld. Counsel while advancing the case of petitioner/accused for grant of bail, has strenuously articulated arguments, that as per the allegations against petitioner/accused, on 08.02.2023 the CBI laid a trap and petitioner/accused alongwith co-accused were caught red- handed while demanding and accepting bribe of Rs. 2.30 lacs from the complainant and both were arrested on 08.02.2023 and thereafter petitioner/accused alongwith co-accused are lying in judicial custody in District Jail Ambphala Jammu for the last more than 1 ½ months and are not required for any further investigation. It is argued, that petitioner/accused has neither accepted any bribe money nor the same has been recovered from him during the alleged trap, petitioner is an innocent person and has not committed any offence, on the contrary, the complainant is trying to arm twist the petitioner with the connivance of certain CBI officers to settle some personal scores which shall be revealed at the stage of cross-examination and defense in the trial, however, by keeping the petitioner under detention for indefinite period will amount to inflicting of pre-trial punishment to him which is against the mandate of criminal jurisprudence which postulates that the presumption of innocence always lies in favour of accused who is presumed to be innocent till guilt is proved against him. It is moreso argued, that no special provisions for bail are provided in the Prevention of Corruption Act and the bail application of petitioner/accused is to be governed under the provisions of Section 437 Cr.PC, "bail is rule" and "jail is exception", petitioner/accused is having his wife, children and old age parents and he being the only male caretaker of his family, as such, humane approach needs to be applied in consideration of his bail. It is further argued, that the personal liberty as enshrined in the Constitution of India is of paramount importance which should not be deprived, petitioner/accused cannot be kept in detention for an indefinite period only upon the mere 4 B. A No. 53/2023 apprehension that he will tamper with the prosecution evidence which cannot be expected, in bail application the general principle is that the object of bail is to secure appearance of the accused person at the trial by reasonable amount of bail and deprivation of liberty must be considered a punishment, the court owe more than verbal respect to the principle that punishment begins after conviction and that every accused is deemed to be innocent until duly tried and found guilty. To buttress his arguments, learned counsel has relied upon the decisions, (i) P Chidambaram versus Central Bureau of Investigation [Criminal Appeal No. 1603 of 2019 arising out of SLP (Crl) No. 2969 of 2019, decided by Hon‟ble Supreme Court on 22 October 2019], (ii) 2014 Legal Eagle 488 [Arnesh Kumar Versus State of Bihar], (iii) ANUJ GUPTA--Petitioner Versus CENTRAL BUREAU OF INVESTIGATION--Respondent [Bail Application No. 279/2022, decided by Delhi High Court on 23.02.2022], & (iv) Umesh Kumar vs Incharge Police Station CBI and anr. [Bail App No. 174/2020 CrlM No. 1015/2020, decided by Coordinate Bench of this Court on 27.10.2020].
4. Ms. Monika Kohli Ld. Sr. AAG for respondent-CBI, per-contra, has sought the rejection of the bail of petitioner/accused by vociferously projecting arguments, that on 08.02.2023 a trap was laid and both the accused persons namely, Sajjad Ahmed Chief Accounts Officer JKTDC and Shokat Ali Lecturer Govt. Polytechnic College Jammu were caught red-handed while demanding and accepting bribe of Rs.2.30 lacs from the complainant in presence of independent witnesses, whereafter, petitioner alongwith co- accused were arrested on 08.02.2023 and taken into custody, the investigation of the case is at very initial stage and the petitioner/accused cannot claim bail as a matter of right as he is indicted in non-bailable offence, there is every likelihood that if petitioner/accused is enlarged on bail at this stage he may tamper with the prosecution evidence and influence the witnesses, thereby, causing irreparable harm to the fair investigation of the case. It is argued, that petitioner/accused being a Govt. Servant has abused his official position and has committed heinous crime under the provisions of Prevention of Corruption Act, petitioner/accused is highly influential and his criminal act is against the societal interest, while granting bail the Court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment etc. and larger 5 B. A No. 53/2023 interests of the public/State, the words „reasonable grounds for believing‟ used by the Legislature for the purpose of granting bail means, that the Court while dealing with the grant of bail can only satisfy it as to whether there is a genuine case against the accused, due to involvement of government officials in accepting the illegal gratification/bribe the confidence of common person has been shaken, investigating agency must be given sufficient time to complete the investigation. Prayer has been made for rejection of bail. In support of her arguments, learned Sr. AAG has relied upon the decisions reported in, (i) (2013) 7 Scale 15 (Central Bureau of Investigation vs V. Vijay Sai Reddy), (ii) 2017(2) RCR (Criminal) 232 (Avneesh Kumar Gupta v CBI) & (iii) [Darbara Singh v/s Union Territory of J&K, judgment/order of J&K High Court rendered in Bail App No. 39/2021].
5. I have heard Ld. counsel for petitioner and Ld. Sr. AAG for respondent. I have pursued the contents of bail application, objections filed by the respondent/CBI, bestowed my thoughtful consideration to the material aspects involved in the case, scanned the ratios of the judgments relied upon by both the sides and have also gone through the relevant law on the subject matter meticulously.
6. Before deciding the case in hand, I would like to enumerate the factors which should be taken in consideration while granting or refusing bail in a non-bailable case. Hon'ble Supreme Court of India in case laws titled State of U.P vs AmarmaniTripathy, reported in 2005(8) SCC 21, vide paragraph- 18 and in CRIMINAL APPEAL No. 448 OF 2021 (@ SPECIAL LEAVE PETITION (CRL.) No. 3577 0F 2020) [Sudha Singh Versus The State of Uttar Pradesh &Anr, judgment delivered on 24-04-2021] has culled out certain factors to be taken in consideration while deciding bail application in non-bailable offences as under:-
"It is well settled that the matters to be considered in an application for the bail are:-
(I) whether there is any prima-facie or reasonable ground to believe that the accused has committed the offence;
(II) nature and gravity of charge;
(III) severity of the punishment in the event of conviction; (IV) danger of the accused absconding or fleeing if released on bail; (V) character, behavior, means, position and standing of the accused; (VI) likelihood of the offence being repeated;
(VII) reasonable apprehension of the witnesses being tampered with; and 6 B. A No. 53/2023 (VIII) danger, of-course the justice being thwarted by grant of bail.
Indeed, these guidelines are not exhaustive, nonetheless, these have to be considered while passing an order in a bail application in a non-bailable offence. The aforementioned factors for grant or refusal of bail in non- bailable offences as the case in hand are discussed under the following headings.
7. Prima-facie or reasonable ground to believe that the petitioner/accused has committed the offence:-
It is profitable to reiterate here, that case FIR No. RC0042023A0003 dated 08.02.2023 has been registered by the CBI, Jammu u/s 120-B of IPC r/w Section 7 of the Prevention of Corruption Act 1988 against the petitioner on the basis of complaint dated 07.02.2023 lodged by one Pankaj Kumar Verma S/o Sh. Sarvan Kumar R/o Lotus Villa, 232 Sector-1 Jalpura Greater Noida UP alleging demand of bribe of Rs.2.30 lacs by accused Sajad Ahmed Chief Accounts Officer JKTDC through Shokat Ali for processing of payment in respect of bills submitted by the complainant, on receipt of the complaint the verification thereof was carried out by Sh. Sanjay Kumar PSI wherein demand of bribe by the accused Sajjad Ahmed from the complainant through Shokat was confirmed, pursuant to which a trap was laid and both the accused persons namely, Sajjad Ahmed Chief Accounts Officer JKTDC and Shokat Ali Lecturer Govt. Polytechnic College Jammu were caught red-handed while demanding and accepting bribe of Rs.2.30 lacs from the complainant in presence of independent witnesses and both the accused were arrested and taken into custody on 08.02.2023 after following all the legal procedure.
From the allegations set out in the FIR, it clearly transpires, that there is a prima-facie case against the petitioner/accused.
The moot point for determination before this court is, even when there is a prima-facie case against the accused, what should be the approach of court in the matter of grant or refusal of bail ?
To appreciate the moot point, J&K High Court in a case law reported in, 2010 (3) JKJ 129 (HC) [Jagdish Kumar & Ors. Versus State and Ors] while granting bail to accused indicted for commission of offences u/ss 306/498-A RPC and while discussing the principles of law in regard to „prima-facie case‟, „approach of court in matter of bail‟ and „question 7 B. A No. 53/2023 of influencing prosecution witnesses‟ in paras 17,18 &19 of the judgment held as under:-
"17.While applying the aforementioned principles, it is necessary for the court to examine the nature and gravity of the circumstances under which the offence is committed. Existence of a prima-facie case is essential. If there is no prima-facie case, there is no question of considering other circumstances. Even where a prima-facie case is established, the approach of the court in the matter of bail, is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tempering with the evidence.
18. The circumstances which have been brought into focus by the respondents as also by the learned sessions Judge, Samba are that the accused persons tried to influence the investigation at the initial stage. The post mortem was got conducted by the Board only through the intervention of the Dy. Commissioner. Nothing has been revealed nor any material has been shown by the prosecution or by the learned Principal Sessions Jude to substantiate this plea. It is mere bald assertion, which cannot be accepted unless there is some material to that extent.
19. Regarding the question of influencing the witnesses, it be seen that material witnesses are parents and brothers of the deceased, which cannot be influenced. Mere allegation that accused persons are influential is not sufficient unless there is some material to that extent.
Ratio of the judgment (Supra) makes the legal proposition abundantly clear, that even if prima facie case is established against accused, the approach of the court in granting bail should be that the accused should not be detained by way of punishment, and regarding influencing of witnesses, the material witnesses who are parents/relatives of the victim cannot be expected to be win over by the accused.
In 2019 Supreme (J&K) 220 (Naresh Singh Versus State of J&K), His Lordships Hon‟ble Mr. Justice Tashi Rabstan while granting bail to the accused indicted for commission of offences u/ss 12 POCSO Act r/w 342 RPC and discussing the concept of „personal liberty‟ enshrined in Article 21 of the Constitution of India vis-à-vis the general rule of law that "bail is rule" & "jail is an exception", in paras 7,8&12 of the judgment held as under:-
7. It is a trite law that personal liberty is a very precious fundamental right enshrined in Article 21 of the Constitution of India and deprivation of liberty is a matter of grave concern. It should be curtailed only when it becomes imperative to the peculiar facts and circumstances of the case. When a person is arrested on the allegations of commission of non-bailable offence, two conflicting interests are pitted against each other, that is, liberty of 8 B. A No. 53/2023 individual involved and interest of society so as to prevent crime and punish criminal. It becomes responsibility of the courts to weigh the contrary factors. The object of detaining a person in judicial custody is to direct him to join the investigation, secure his presence at trial, he may not interfere with investigation, intimidate witnesses, tamper with evidence, flee from justice, chances of repeating the offence etc., and if this purpose can be fulfilled by putting certain conditions and securing bail bonds, it would be an ideal blending of two apparently conflicting claims.
8. A fundamental postulate of Criminal Jurisprudence is the presumption of innocence, which means a person is believed to be innocent until found guilty. Another facet of our Criminal Jurisprudence is that grant of bail is the general rule and putting a person in jail is an exception (Bail but not jail). Grant or denial of bail is entirely the discretion of a Judge considering a case, but such discretion should be exercised judiciously and not arbitrarily.
12. In the present case, the fact that out of nine prosecution witnesses, seven material witnesses stands already examined before the court including prosecutrix, so the mere apprehension of the respondent that the applicant- accused if enlarged on bail would temper with the prosecution evidence or possibility of his winning over the prosecution witnesses can be ruled out. It is a settled law that mere apprehension that accused would temper with the prosecution evidence or intimidate the witnesses cannot be a ground to refuse the bail unless the prosecution shows that accused actually tried such tempering/intimidation. My view to release the applicant-accused on bail further gets fortified from the statement of prosecutrix so also from the prosecution story that on 28.10.2018, when she went to School and alighted from the school van, the accused who was already there along with his vehicle forcibly pulled her inside his car and molested and confined her in his car for two hours, and when the parents of the prosecutrix reached near the School, accused on seeing them pushed her outside of his Car and fled away, which prima facie seems false as 28th of October, 2018 falls Sunday, and being Sunday there were no extra classes by the School Authorities to attend the tuition classes and neither any school buses were operated on that day. The apprehension of the respondent that applicant-accused may abscond from justice can be taken care of by imposing certain terms and conditions.
Ratio of the judgment (Supra) further makes the legal proposition manifestly clear, that fundamental postulate of criminal jurisprudence is the presumption of innocence lies in favour of accused who is presumed to be innocent till guilt is proved, grant of bail is a general rule and its refusal is an exception and deprivation of personal liberty must be considered as punishment.
In 2007 Supreme (J&K) 48 (Mohd. Razak & Anr. Versus State of J&K & Anr.), Hon‟ble Mr. Justice J.P. Singh (His Lordships the then was Judge of J&K High Court) while granting bail to accused persons arrested in 9 B. A No. 53/2023 offence u/s 5(2) of Prevention of Corruption Act, 1988 caught red handed in a trap while demanding & accepting bribe of Rs. 1000, in paras 8, 9, 10, 11 & 12 held as under:-
8. So long as there were no such Special provisions in force providing severe punishment and stringent provisions regarding bail during investigation and trial of cases under the Prevention of Corruption Act and such like other Laws, persons accused of offences under the Prevention of Corruption Act, 2006, cannot, in my opinion, be treated differently to deny them consideration for bail during investigation and trial merely because they were alleged to be involved for infraction of offences under the Prevention of Corruption Act, 2006.
9. While considering release of persons accused of offences under the Prevention of Corruption Act, general principles governing grant or refusal of bail and provision of Section 497 of the Code of Criminal Procedure are undoubtedly required to be kept in view, and bail in such non-bailable offences may not be claimed, as of right, and in the absence of any special circumstances warranting refusal of bail, the well recognized principle that bail is the rule and refusal an exception would always be a guiding factor for the Courts while considering the grant or refusal of bail in such cases.
10. I, therefore, do not see any substance in Mr. Salathiass submission that the petitioners were required to be treated differently because they had been arrested under Section 5(2) of the Prevention of Corruption Act 2006.
Argument of State counsel that the petitioners would tamper with the prosecution evidence, too appears to be conjectural and a mere surmise.
The petitioners have remained under custodial investigation for over a week. They, under the Service Rules applicable to them are deemed to have been suspended.
11. Therefore, I do not think it to be appropriate to keep them in police custody any more lest their detention in custody may amount to punishment sans trial.
12.For all what has been said above, these applications are allowed and petitioners are directed to be released from custody on their furnishing personal recognizance and recognizance of a surety each, in the amount of Rs. 10,000/- to the satisfaction of Registrar Judicial of this Court. The petitioners shall file an undertaking that they would not come directly or indirectly in contact with the prosecution witnesses and shall not impede in any manner whatsoever, the course of investigation.
Ratio of the judgment (Supra) further makes the legal proposition manifestly clear, that even in cases under the Prevention of Corruption Act where no special provisions for bail are provided, these cases are governed by the provisions of Section 497 (437) of the Code of Criminal Procedure and bail in such non-bailable offences may not be claimed as a matter of 10 B. A No. 53/2023 right, but the grant or refusal of bail is well recognized by the principle that "bail is rule" and "refusal is an exception".
In reference to the moot point aforesaid, I would like to refer the judgments relied by Ld. Counsel for the parties. In [P.Chidambaram versus Central Bureau of Investigation [Criminal Appeal No. 1603 of 2019 arising out of SLP (Crl) No. 2969 of 2019, decided by Hon‟ble Supreme Court on 22 October 2019] relied by Ld. Counsel for petitioner/accused, Hon‟ble Supreme Court granted bail to the accused P. Chidambaram lying in custody for 2 months and indicted for commission of offences u/ss 120-B, 420 IPC r/w Section 8 & Section 13(2), Section 13(1) (d) of Prevention of Corruption Act 1988 involved in alleged irregularities in Foreign Investment Promotion Board (FIPB) clearance given to INX Media for receiving Foreign investment to the tune of Rs. 305 Crores against approved inflow of Rs. 4.62 Crores, for the reasons that accused was not a flight risk and there was no possibility of his abscondance from trial and nothing was put forth by the prosecution that the accused had influenced the prosecution witnesses and there is likelihood of his further influencing the prosecution witnesses.
In 2014 Legal Eagle 488 [Arnesh Kumar Versus State of Bihar] relied by Ld. Counsel for petitioner/accused, Hon‟ble Supreme Court granted anticipatory bail to the accused indicted for commission of offences u/s 498-A r/w Section 4 of Dowry Prohibition Act 1961 for the reasons that both the offences are punishable upto maximum imprisonment for 3 years and 2 years respectively, and in offences below 7 years no arrest should be made.
In ANUJ GUPTA--Petitioner Versus CENTRAL BUREAU OF INVESTIGATION--Respondent [Bail Application No. 279/2022, decided by Delhi High Court on 23.02.2022], further relied by Ld. Counsel for petitioner/accused, Delhi High Court granted regular bail to the accused Anuj Gupta u/s 439 Cr.pc indicted in FIR No. RC 2182021A0007 registered u/ss 7/8/9/10 of the Prevention of Corruption Act 1988 (as amended in 2018) r/w Section 120-B IPC at P/S CBI/AC-III Delhi on the grounds, that an amount of Rs. 3.71 Crores during the investigation stood recovered from co-accused Mahim Partap Singh Tomar who was already granted bail, moreso, co-accused persons namely, Retnakaran Sajilal, Sunil 11 B. A No. 53/2023 Kumar Verma, Uma Soni & Davindra Jain were already granted regular bails, and accused had deep roots in the society as being Chartered Accountant.
In Umesh Kumar vs Incharge Police Station CBI and anr. [Bail App No. 174/2020 CrlM No. 1015/2020] relied by Ld. Counsel for petitioner/accused, Coordinate Bench of this Court on 27.10.2020 granted regular bail to the accused in case No. RC00420209A004 for offence u/s 7 of PC Act registered with police station CBI/ACB Panama Chowk Jammu on the grounds, that bail is the rule and jail is an exception, there is no legal or statutory bar in grant of bail, offence committed by the accused u/s 7 of PC Act is neither punishable for death sentence or imprisonment for life and rigor of Section 437 (1) (i) Cr.pc is not applicable.
From the ratios of the judgments (Supra) of "Jagdish Kumar","Naresh Singh‟", "Mohd. Razak", "P. Chidambaram", "Arnesh Kumar", "ANUJ GUPTA" & "Umesh Kumar" Cases, the principle of law deduced is, that while considering a bail application in non-bailable offence even where there is a prima-facie case against the accused, the approach of court in the matter of bail should be that accused should not be detained by way of punishment, grant of bail is general rule and refusal an exception.
In (2013) 7 Scale 15 (Central Bureau of Investigation vs V. Vijay Sai Reddy), relied by Ld. Counsel for CBI, Hon‟ble Supreme Court held, that while granting bail court has to keep in mind various factors for grant or refusal of bail viz; nature of accusation, nature of evidence in support thereof, severity of punishment, character of accused, reasonable possibility of securing the presence of accused at trial, reasonable apprehension of witnesses being tempered with and larger interest of public/state and other similar considerations. To my considered view, the observations of the Apex Court would be strictly followed in the case in hand.
In 2017(2) RCR (Criminal) 232 (Avneesh Kumar Gupta v CBI), relied by Ld. Counsel for CBI, Hon‟ble High Court of Uttarakhand held, that graft case is entirely difference from other common offences, as such, bail in such cases should be considered with great circumspection and the courts have to strike a balance between societal interest and individual interest and there should be zero tolerance to the corruption.
12 B. A No. 53/2023In [Darbara Singh v/s Union Territory of J&K, judgment/order of J&K High Court rendered in Bail App No. 39/2021] relied upon by Ld. Counsel for CBI, Hon‟ble J&K High Court in a graft case refused bail to the accused by taking into consideration the status/progress of investigation that while laying a trap accused was caught red handed on 29- 01-2021 by CBI/ACB Jammu wherein while demanding and accepting bribe the bribe amount of Rs. 50,000/- was recovered from the accused and also from searches of his office and residential premises cash of Rs. 1,45,000/- from his Jammu residence and sum of Rs. 5,10,000/- was found from his Chandigarh residence alongwith other documents relating to investment in property i.e.Flat No. B-2 Dr. Ambedkar Co-Operative House Building Society Ltd. Sector 76 Mohali and Plot measuring 250 Sq yards R.K.M City Sector 111-112 SAS Nagar Mohali. It is apt to reiterate here, that none of the decisions relied upon by Ld. Counsel for CBI lay down an invariable rule of law that in all the non-bailable offences and especially in cases under Prevention of Corruption Act bail should always be refused, but the grant or refusal would depend upon the facts of the case and the stage of the investigation.
Now, coming back to the grips of present case, it is noteworthy to reiterate here, on the basis of complaint dated 07.02.2023 lodged by one Pankaj Kumar Verma, a trap was laid on 08.02.2023, graft amount of Rs.2.30 lacs in cash was recovered from possession of accused Sajjad Ahmed, Chief Accounts Officer JKTDC through Shokat Ali for processing of payment in respect of bills submitted by the complainant. In light of the ratios of the judgments (Supra) law is no longer res-integra, that even if there is a prima-facie case against accused, the approach of the court in the matter of bail is not that the accused should be detained by way of punishment and that "bail is a rule" and "jail is an exception".
8. Nature and gravity of Charge:-
The nature and gravity of charge is not very serious. It is the allegations against petitioner/accused that on the basis of complaint CBI laid a trap on 08.02.2023 and recovered alleged graft amount of Rs. 2.30/- lacs in cash from one of the accused namely Sajad Ahmed Chief Accounts Officer JKTDC through Shokat Ali for processing of payment in respect of bills submitted by the complainant, whereby, accused were arrested on 13 B. A No. 53/2023 08.02.2023 which led to registration of case FIR No. RC0042023A0003 dated 08.02.2023 by the CBI Jammu u/s 120-B of IPC r/w Section 7 of the Prevention of Corruption Act 1988. It is true, that corruption is rampant in the society and its tentacles are spreading with alarming speed affecting the credibility of the society itself and the proper governance. As long as there are no special provisions in force providing severe punishment and stringent provisions regarding bail during investigation and trial of cases, persons accused of offences under Prevention of Corruption Act cannot be treated differently to deny him the consideration of bail during investigation and trial merely because he is alleged to be involved for infraction of offences under P.C. Act and his bail application is to be governed under the provisions of Sec. 497(437) of Code of Criminal Procedure and the guiding factor would be that grant of bail is rule and refusal an exception.
9. Severity of Punishment & danger of accused absconding or fleeing if released on bail:-
Petitioner/accused is not indicted in offences punishable with life imprisonment or death penalty, as the maximum punishment provided for commission of offence u/s 7 of P.C. Act 1988 is seven (7) years. It is beaten law that when the punishment is severe, there is every danger of accused absconding or fleeing from justice if released on bail. More severe the punishment is, more are the chances of the accused to abscond during to the trial or flee from justice if released on bail. Petitioner/accused is Govt. Servant, hence there is no chance of his abscondence/fleeing from justice if released on bail.
10. Character, behavior, means & position of the accused:-
Prior to the registration of trap case against petitioner/accused, there are no allegations against him that he is habitual offender or has earlier been indulged in any type of crime. Petitioner/accused is the Govt. Servant and at present is under deemed suspension. Right from the day of his arrest on 08.02.2023 after the police/CBI custody he is now in judicial custody and nothing has been placed on record by respondent/CBI that he has exhibited any unruly behavior/conduct during investigation or during judicial custody.
11.Likelihood of the offence being repeated:-
Petitioner/accused after his arrest on 08.02.2023 was taken into CBI 14 B. A No. 53/2023 custody and now is lying in judicial custody in District Jail Ambphala Jammu. Petitioner/accused is Govt. Servant. Nothing substantial has been placed on record by the respondents that if enlarged on bail there is every likelihood of petitioner/accused to repeat the offence.
12.Reasonable apprehension of the witnesses being tempered with:-
It is unambiguously reiterated here, that from the date of arrest of petitioner/accused on 08.02.2023, for the last more than 1 ½ months he is lying in detention in judicial custody in District Jail Ambphala Jammu. It is settled law, that mere apprehension that petitioner/accused would temper with the prosecution evidence or intimidate the witnesses cannot be ground to refuse the bail unless the prosecution viz; respondent/CBI shows with substantial evidence that accused actually tried such tempering/ intimidation. The material witnesses in the case are the CBI officials and it is beyond comprehension that they would be influenced by petitioner/ accused.
13.Danger, of course, the justice being thwarted by grant of bail:-
In view of the plethora of judgments referred above, it can be safely held, that a balance has to be struck between the "right to individual liberty" and "interest of the society". The law as discussed above is no longer res- integra that while considering an application for grant or refusal of bail in non-bailable offence, concept of „personal liberty‟ as enshrined in Article- 21 of the Constitution of India is of paramount importance and the general rule is that „bail is rule‟ and „jail an exception‟. Petitioner/accused is lying in detention for the last more than 1 ½ months and presently is in judicial custody and is not required for the purpose of investigation any more. The fundamental postulate of criminal jurisprudence is that an accused is presumed to be innocent till guilt is proved against him. Keeping of petitioner/accused in continuous detention would amount to infringement of his fundamental right to life and liberty which would amount to his incarceration and inflicting pre-trial punishment which is against the mandate of criminal jurisprudence, as punishment can only be inflicted after full flagged trial and after holding the accused guilty. In view of the aforesaid discussion, it is amply clear, that there would be no danger of the course of justice being thwarted if petitioner/accused is granted bail.
Therefore, petitioner/accused has carved out a strong case for grant of bail 15 B. A No. 53/2023 in his favour. The bail application succeeds, and is allowed. Accordingly, petitioner/accused is admitted to bail subject to his furnishing one surety bond in the sum of Rs. 50,000/- to the satisfaction of Registrar Judicial of this Court with personal recognizance of like amount before Superintendent District Jail Ambphalla Jammu where he is presently lying in judicial custody. Before parting, the following conditions are imposed upon the petitioner/accused;
(i) that the petitioner/accused shall not influence the prosecution witnesses or intimidate them or dissuade them from deposing before the investigating agency or court;
(ii) that the petitioner/accused shall not leave the territorial jurisdiction of the trial court without seeking prior permission from it;
(iii) that in case respondent/CBI collects any material during the period the petitioner/accused is on bail that he is influencing the witnesses or has tried to intimidate them, the prosecution/respondent would be within its rights to move an application before this court for cancellation of his bail.
14.Disposed off accordingly.
Jammu: (Mohan Lal)
31.03.2023 Judge
Vijay
Whether the order is speaking: Yes/No
Whether the order is reportable: Yes/No