Himachal Pradesh High Court
_________________________________________________________________ vs State Of Himachal Pradesh on 2 January, 2018
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
CrMP(M) No. 1564 of 2017
Decided on January 2, 2018
_________________________________________________________________
Sachin Datta Rathod ... Petitioner
.
Versus
State of Himachal Pradesh Respondent
_________________________________________________________________
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1 yes.
For the petitioner : Mr. Desh Raj Thakur, Advocate.
For the respondent : Mr. R.K. Sharma, Deputy Advocate
General.
ASI Gopinder Paul, Police Station,
East, Shimla, District Shimla,
Himachal Pradesh.
_________________________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioner namely Sachin Datta Rathod, who is in custody since 1711.2017, has approached this Court by way of instant petition under Section 439 CrPC, praying therein for regular bail, in case FIR No. 126/17 dated 7.11.2017 under Sections 505(2), 124A, 419, 420, 511 and 201 IPC, registered at Police Station, East, Shimla, District Shimla, Himachal Pradesh.
2. Sequel to order dated 26.12.2017, ASI Gopinder Paul has come present with the record. Mr. R.K. Sharma, learned Deputy Advocate General has also placed on record status report, prepared on the basis of investigation carried out by the investigating agency, perusal whereof suggests that FIR 1 Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 03/01/2018 23:24:29 :::HCHP 2detailed herein above, came to be lodged at the behest of complainant namely Harbans Lal, Election Officer, who after having received complaints from the candidates contesting .
elections to Himachal Pradesh State Legislative Assembly, reported the matter to the police that one candidate received a telephonic call from mobile No. 070930-34540. The person speaking from aforesaid number claimed that he could manipulate the results of the Assembly elections in their favour by sabotaging/ manipulating the EVMs/VVPATs. Police, on the basis of aforesaid statement made by the complainant under Section 154 CrPC, lodged a formal FIR as stated above. Record reveals that in the investigation, police found involvement of the present bail petitioner and accordingly, registered a case against him under various provisions of law, as have been taken note above. Bail petitioner came to be arrested on 17.11.2017, whereafter, he approached learned Sessions Judge, Shimla, for grant of bail. Same was rejected vide order dated 12.12.2017.
Perusal of order dated 12.12.2017, passed by learned Sessions Judge suggests that since investigation was at initial stage and certain reports were yet to be received by the investigating agency, learned Court below rejected the bail of the bail petitioner on the ground that enlargement of bail petitioner, at this stage, may hamper investigation.
::: Downloaded on - 03/01/2018 23:24:29 :::HCHP 33. Mr. Desh Raj Thakur, learned counsel representing the bail petitioner, while referring to the record/status report contended that investigation in the case is complete and .
nothing is required to be recovered from the bail petitioner, as such, he deserves to be enlarged on bail. Mr. Thakur, further contended that though perusal of record /status report clearly suggests that no case is made out against the bail petitioner, but otherwise also, investigation is complete and nothing is required to be recovered from the bail petitioner, because he has already made available required documents as well as instrument allegedly used by him while spreading rumour with regard to EVM's/VVPATs.
4. Mr. R.K. Sharma, learned Deputy Advocate General, while opposing aforesaid prayer having been made on behalf of the bail petitioner contended that keeping in view the gravity of offence allegedly committed by the bail petitioner, he does not deserve any leniency, rather deserves to be dealt with severely.
Learned Deputy Advocate General, while referring to the record/ status report contended that it has specifically come in the investigation that bail petitioner made a series of calls to the candidates contesting elections to the Himachal Pradesh State Legislative Assembly, assuring them to manipulate result in their favour by hacking/sabotaging EVM's/VVPAT's. Mr. Sharma, while fairly conceding that investigation is complete ::: Downloaded on - 03/01/2018 23:24:29 :::HCHP 4 and nothing is required to be recovered from the bail petitioner contended that in the event of petitioner's being enlarged on bail, there is every likelihood of his fleeing from justice, as he .
hails from State of Maharashtra. Learned Deputy Advocate General, further contended that as per record of the investigation, bail petitioner is a habitual offender and cases have been already registered against him in the State of Maharashtra. Mr. Sharma, further contended that in case, this court intends to grant bail to the bail petitioner, he may be put to stringent conditions so that his presence is secured during trial.
5. I have heard the learned counsel for the parties and gone through the record carefully.
6. Perusal of record suggests that bail petitioner contacted several candidates contesting elections to Himachal Pradesh Vidhan Sabha and claimed that he could manipulate the result of Assembly elections in their favour by hacking/sabotaging the machines, but record also reveals that investigation in the case is almost complete and nothing is required to be recovered from the bail petitioner. Guilt, if any, of the bail petitioner for having committed offence punishable under aforesaid provisions, is yet to be proved by prosecution by leading cogent and convincing evidence, as such, freedom of bail petitioner can not be curtailed merely on the apprehension of the investigating ::: Downloaded on - 03/01/2018 23:24:29 :::HCHP 5 agency that in the event of petitioner being enlarged on bail, he may flee from justice, especially when there is no material placed on record by the investigating agency in support of such .
apprehension. However, aforesaid apprehension with regard to petitioner fleeing from justice, can be met by putting bail petitioner to stringent conditions, as has been stated by the learned counsel representing the bail petitioner.
7. 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; has been 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 ::: Downloaded on - 03/01/2018 23:24:29 :::HCHP 6 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."
8. Law with regard to grant of bail is now well settled. The Apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra 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 ::: Downloaded on - 03/01/2018 23:24:29 :::HCHP 7 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 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;::: Downloaded on - 03/01/2018 23:24:29 :::HCHP 8
(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 entitled to an order of bail." (Emphasis supplied)
9. Hon'ble Apex Court, in Sundeep Kumar Bafna versus State of Maharashtra (2014)16 SCC 623, has 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 person accused of the commission of a non-bailable offence punishable ::: Downloaded on - 03/01/2018 23:24:29 :::HCHP 9 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 ::: Downloaded on - 03/01/2018 23:24:29 :::HCHP 10 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 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."
10. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held as under:
"This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be ::: Downloaded on - 03/01/2018 23:24:29 :::HCHP 11 innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted."
11. 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 also, normal rule is of bail and not jail. Apart from above, 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.
12. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the ::: Downloaded on - 03/01/2018 23:24:29 :::HCHP 12 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.
13. In view of above, present petition is allowed and the petitioner is ordered to be enlarged on bail in the aforementioned FIR, subject to his furnishing personal bonds in the sum of Rs.1,00,000/-(Rupees One Lakh) with two sureties in the like amount, one local surety and one from the State of Maharashtra, to the satisfaction of concerned Chief Judicial Magistrate, 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/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 deposit passport, if any, held by him, with the Investigating Officer.::: Downloaded on - 03/01/2018 23:24:29 :::HCHP 13
14. It is clarified that if 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.
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15. 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 petition alone.
The petition stands accordingly disposed of.
Copy dasti.
(Sandeep Sharma) Judge January 2, 2018 (vikrant) ::: Downloaded on - 03/01/2018 23:24:29 :::HCHP