Punjab-Haryana High Court
Desh Raj vs Central Bureau Of Investigation on 13 December, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
CRM M-36767 of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANAAT
CHANDIGARH
CRM M-36767 of 2012 (O&M)
Date of Decision: December 13, 2012
Desh Raj
... Petitioner
Versus
Central Bureau of Investigation
... Respondent
CORAM: HON'BLE MR JUSTICE PARAMJEET SINGH
1. Whether Reporters of local newspapers may be allowed to see judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present: Mr. S.K. Garg Narwana, Sr. Advocate with
Mr. Ravinder Singh and Mr. Naveen Gupta, Advocates,
for the petitioner.
Mr. Sumeet Goel, Special Public Prosecutor
for CBI-respondent.
Paramjeet Singh, J. (Oral)
Present petition has been filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the petitioner pending trial in case FIR No. RCCHG2012 ACO 23 dated 18.10.2012, under Sections 7 of the Prevention of Corruption Act, 1988, registered at Police Station CBI, Sector 30, Chandigarh.
Brief facts of the case are that CBI registered aforesaid FIR against petitioner - Desh Raj Singh, Superintendent of Police, City Chandigarh on the written complaint of Anokh Singh, Inspector/SHO, CRM M-36767 of 2012 2 Police Station Sector 26, Chandigarh. In his complaint, the complainant has alleged that a departmental enquiry was ordered against him by the Senior Superintendent of Police, U.T., Chandigarh on the basis of a report of the petitioner being a Superintendent of Police (City)/Supervisory Officer in connection with FIR No. 230 dated 28.08.2012 and FIR No. 224 dated 18.08.2012 for dereliction of duty, insubordination and not informing senior officers about crime. It is also alleged by the complainant that he was not at fault. In the FIR, it is further alleged that on 05.10.2012 in the evening, petitioner called the complainant on his Mobile No. 9779580926 from his Mobile No. 9779580905 and asked him to come to his residence at H.No. 114, Sector 23, Chandigarh. As the complainant reached at the house of the petitioner, he discussed about the functioning of complainant's police station and demanded Rs. 5 lacs as bribe for not harassing him and for helping him in the inquiry by deposing in his favour. When the complainant expressed his inability to pay such a huge amount the petitioner allegedly reduced the bribe amount to Rs. 2 lacs. Thereafter, the complainant discussed the matter with a CBI official and told about the demand of bribe. The CBI official told the complainant that demand of bribe is to be verified by way of recording before initiating any action. The petitioner called the complainant to his office on 12.10.2012 and again demanded allegedly bribe of Rs. 2 lacs. The complainant expressed his inability to pay the amount in full. On this, the petitioner allegedly agreed to accept Rs. One lac as first installment. The complainant further informed the petitioner that he needed a week's time for arranging the CRM M-36767 of 2012 3 bribe amount and the complainant at his own recorded the conversation in his mobile. The complaint was marked to Sh. Kuldeep Singh, Inspector for verification and the verification conducted confirmed the demand of bribe by the petitioner from the complainant. Thereafter, the case was registered and trap was laid at the residence of the petitioner. The petitioner was allegedly caught red handed while demanding and accepting the bribe of Rs. One lac from the complainant. The said bribe amount was recovered from the drawer of the side table in the camp office of the petitioner. The petitioner was arrested on 18.10.2012 at 9.00 p.m. The petitioner has approached this Court for bail as his bail application was declined by the learned Special Judge, CBI Court, Chandigarh vide order dated 08.11.2012.
On notice of motion, the respondent-CBI has filed reply. Sum and substance of the reply filed to the petition is that the complaint was registered after due verification and thereafter raid was conducted. In pursuance of the raid, the recovery of alleged bribe was effected. The conversations between the petitioner and the complainant were recorded. The complainant recorded his conversations with the petitioner firstly on his mobile. Subsequently, the conversations were recorded on two Soni Digital Voice Recorders used by the CBI at the pre-trap stage, as well as, during the course of trap. This was done in order to avoid possibility of leakage of information and for that reason shadow witnesses were also not joined. The learned counsel for the respondent submitted that the petitioner is likely to influence the witnesses being a Senior Police Officer and he CRM M-36767 of 2012 4 does not deserve the concession of regular bail in the facts and circumstances of the case.
I have heard learned counsel for the parties.
Learned counsel for the petitioner contends that the prosecution is relying upon the voice recording of conversation between the complainant and the petitioner, firstly on the mobile, thereafter allegedly pre-trap voice has been recorded and the transcript has been shown to the Court. The voice has been recorded in three phases, firstly on the mobile phone of the complainant, secondly on recorders as pre-trap records and thirdly during the trap/raid conducted at the house of the petitioner, but this evidence cannot be appreciated at the stage of bail. Such evidence can be considered at the time of trial. Authenticity of the audio-recording is yet to be tested and is to be proved by cogent evidence by comparing the voice of the petitioner as well as the complainant. The transcript at the face value cannot be taken into consideration. Learned counsel for the petitioner further contended that acoustic analyses is not an exact science, therefore, this evidence cannot be relied upon. Learned counsel for the petitioner further contended that alleged recovery has been effected from the drawer of the table in the camp office of the petitioner and not from his person. The complainant being a subordinate used to visit the camp office and may have placed the same in the drawer of the table. Such a recovery cannot be treated as bribe at the face value. This is required to be proved. Learned counsel for the petitioner has made reference to a part of the conversations `Chandigarh Ki Politics". This CRM M-36767 of 2012 5 reference is perhaps to the party faction in the Chandigarh Police. For that reason, the petitioner may have been involved in the case. Learned counsel for the petitioner has further made reference to the transcript to show that at various places the recorded version is blank and tampering with voice recording can not be ruled out in view of latest electronic gadgets available. The blank spaces left in the transcript are clear indicative of the fact that the alleged recorded voice is being used selectively, whereas the transcript as a whole is to be read. Rather, the reading of transcript makes it clear that "Meray ko jarurt thee Islay Kaha Tha Aapko" - (I was in need of money so I said to you). It is the contention of the counsel for the petitioner this cannot be treated as demand of bribe. Learned counsel for the petitioner further contends that this Court is not required to go deep into the evidence collected by the Investigating Agency for deciding the bail application as it will prejudice the cause of both the complainant as well as the petitioner. Learned counsel for the petitioner further contended that the minor daughter of the petitioner, aged about 3 years is suffering from left bronchial plexopathy, for which she has been getting regular treatment from Nanavati Hospital, Mumbai since 2010. Otherwise also, no independent or shadow witness except the alleged recorded voice evidence and the evidence of the complainant is available. Further contended that the complainant had motive to falsely implicate the petitioner since the petitioner was/is to depose against him for dereliction of duty, insubordination and not informing senior officers about crime and other acts for which the allegations alleged against the complainant are being CRM M-36767 of 2012 6 enquired. Learned counsel for the petitioner further submitted that keeping in view the medical circumstances of the minor daughter of the petitioner, the petitioner should be released on bail as he being the only male member in the family will have to accompany his wife for treatment of his daughter in Mumbai. In support of his contention, learned counsel for the petitioner has relied upon judgments of the Hon'ble Supreme Court of India in Hanuman Govind, Nargundhar and another versus State of M.P., AIR 1952 Supreme Court, 343(1), Ganga Kumar Srivastava vs. State of Bihar, (2005) 6 Supreme Court Cases 211, and judgments of this Court in Ramesh Sehgal versus State of Haryana, 1997(2) R.C.R. (Criminal) 78 and Dalip Singh vs. State of Punjab, 2009(1) RCR (Criminal) 657.
Learned counsel for the CBI submitted that transcript should be read as a whole and it cannot be used in a pick and choose manner and contended that a conjoint reading of the voice records/transcripts clearly indicates that amount was sought from the complainant as a bribe to favour the complainant in the enquires in different cases pending against the complainant. Bribe money has been recovered during the trap and CBI has joined two Gazetted Officers of the Income Tax Department in the raid. Learned counsel further contended that shadow witnesses have not been associated since it was a case of Senior Police Officer and there was every possibility of leakage of the information and for that reason not one but two modern Soni Digital Recorders have been used in this case. Moreover, as per the provisions of the Indian Penal Code, Code of Criminal Procedure and the Evidence Act, there is no mandatory requirement of CRM M-36767 of 2012 7 joining the shadow witnesses. It was further contended that if bail be granted to the petitioner, being a senior police officer, there is every likelihood of his tampering with evidence and influencing the witnesses particularly the complainant. Learned Counsel for the CBI further states that the investigation is almost complete. In support of his contention, learned counsel has made a references to the various authorities, which are as under:-
1. State through C.B.I. Versus Amaramani Tripathi, 2005(4) R.C.R. (Criminal) 280.
2. Anil Kumar Tulslyani vs. State of U.T. & another, 2006(20 R.C.R. (Criminal) 911.
3. State of U.P. versus Dr. G.K.Ghosh, 1984(1) R.C.R. (Criminal) 22.
4. Mukut Bihari and another vs. State of Rajasthan, 2012(3) R.C.R. (Criminal) 980.
5. Hanuman Govind, Nargundkar and another versus State of M.P., 1952 AIR (SC) 343.
6. Ganga Kumar Srivastava vs. The State of Bihar, 2005(3) R.C.R. (Criminal) 707.
7. Dr. Subramanian Swamy vs. Dr. Manmohan Singh and another, 2012(1) R.C.R. (Criminal) 720.
I have considered the rival contentions of the learned counsel for the parties.
The petitioner has approached this Court after rejection of bail application by the learned Special Judge, CBI Court, Chandigarh vide order dated 08.11.2012.
The main object of the bail is to secure the appearance of the accused person at trial. The object of the bail is neither punitive nor CRM M-36767 of 2012 8 preventative.
The Hon'ble Supreme Court in Sanjay Chandra versus CBI, 2011(4) R.C.R. (Criminal) 898 has considered the entire law with regard to grant of bail. In para nos.14 and 15 of the said judgment, the Hon'ble Supreme Court has observed as under:-
"14. In bail applications, generally, it has been laid down from the earliest times that 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. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship.
From time to time, necessity demands that some un-convicted 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 this country, 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 CRM M-36767 of 2012 9 witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of a 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 un-convicted person for the purpose of giving him a taste of imprisonment as a lesson.
15. In the instant case, as we have already noticed that the "pointing finger of accusation"against the appellants is `the seriousness of the charge'. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather "recalibration of the scales of justice." The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused CRM M-36767 of 2012 10 pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar Vs. Rajesh Ranjan- (2005) 2 SCC 42, observed that "under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of non-bailable offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so."CRM M-36767 of 2012 11
In the light of the aforesaid judgment of the Hon'ble Supreme Court, the principal rule to guide release on bail should be to secure the presence of the applicant who seeks bail, to take judgment and serve sentence in the event of the Court punishing him with imprisonment at the end of trial. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the petitioner for fear of a severe sentence, if such be plausible in the case. In the instant case, it is to be seen as to whether the course of justice would be thwarted by the petitioner who seeks the benignant jurisdiction of the Court to be freed for the time being. Thus, this Court deems it appropriate firstly to look into the contention of the CBI that petitioner is likely to interfere with the prosecution witnesses or otherwise effect the process of justice. In these circumstances, it would be appropriate to look into the rationale, behind the contention of the CBI, for that purpose, antecedents of the petitioner who is seeking bail are to be seen.
The petitioner has been involved in a case of alleged receipt of bribe. The petitioner is a senior police officer and has been apprehended in a trap at the instance of the complainant who is also a police official of the rank of Inspector. It is not the case of the CBI that the petitioner is a criminal, as a result of which the witnesses will be influenced. Moreover, it is appropriate to mention here that only main witness is the complainant who himself is a police official and others are Gazetted Officers of the Income Tax Department. Besides this, the other evidence is in the shape of voice recordings, on the basis of which the transcripts have been shown to CRM M-36767 of 2012 12 this Court.
In these circumstances, this Court is of the prima facie view that the petitioner will not be in a position to tamper with the evidence specifically when he is under suspension. There is no apprehension of the petitioner fleeing from the process of law being an officer and tampering with the evidence more so when the substantive evidence, which is sought to be adduced by the CBI against the present petitioner, happens to be documentary evidence i.e. voice recording on the voice recorders. Therefore, in the opinion of this Court, there is no question of petitioner either intimidating the complainant or tampering with the evidence. Merely on the ground that the petitioner is a Senior Police Officer and will be in a position to influence the witnesses is highly improbable and prima facie there is no such likelihood much-less evidence in this regard. If the contention of CBI is accepted, then bail is to be denied in each and every criminal case that comes before Court.
Hon'ble Supreme Court in Sanjay Chandra (supra) has dealt with the previous judgments on the subject and reiterated the principles of law, which the Court has to bear in mind, while dealing with the application for grant of bail. One principle feature of the above referred judgment, which is noticeable, is that it has put a great deal of emphasis on the personal liberty of the under trial, while considering the bail applications, which principle seems to have been obscured by the passage of time by Courts. To sum up, these principles are reiterated as under:-
(a) There is a presumption of innocence in favour of the accused CRM M-36767 of 2012 13 till he is found to be guilty.
(b) The bail is the rule and denial thereof is the exception. For the purpose of denial of the bail there must be extra ordinary circumstances necessarily meaning that bail out not to be denied to an accused only on the ground of general sentiments of the community as it impairs the right to liberty guaranteed to an accused.
(c) While considering the grant of bail, both the factors, namely, the seriousness of charges and the severity of punishment which the offence carries must be taken into consideration.
(d) The bail ought to be granted in a case where there are no chances of the accused fleeing away from the processes of law or in other words, the accused, who is released on bail must be readily and willingly available to submit himself to the custody of the Court at any given point of time.
(e) The grant of bail ought not to be denied only on the perceived apprehension by the Court that the petitioner, if restored to a liberty, will tamper with the evidence. There must be some prima facie evidence on record or reasonable and justifiable grounds to believe that in case the benefit of bail is extended to an accused he is going to misuse his liberty or likely to create conditions which are not conducive to hold a fair trial.
In the instant case, the offence for which the petitioner has been charged is punishable with imprisonment upto seven years under the CRM M-36767 of 2012 14 Prevention of Corruption Act.
I do not consider it necessary to discuss the judgments relied upon by the counsel for the parties on account of the fact that basic principles have been laid down in Sanjay Chandra's case (supra), though I have gone through these judgments. The petitioner has roots in the society, he is public servant and his movements can be regulated by imposing conditions as mentioned in the Sanjay Chandra's case (supra).
Nevertheless it is pertinent to quote the judgment of the Hon'ble Supreme Court in Vaman Narain Ghiya versus State of Rajasthan, 2009(1) R.C.R. (Criminal) 473, where the concept and philosophy of bail has been discussed in the following words:-
"13. "Bail"remains an undefined term in the Criminal Procedure Code Nowhere else the term has been statutorily defined. Conceptually, it continues to be understood as a right for assertion of freedom against the State imposing restraints since the U.N. Declaration of Human Rights of 1948, to which Indian is a signatory, the concept of bail has found a place within the scope of human rights. The dictionary meaning of the expression 'bail' denotes a security for appearance of a prisoner for his release. Etymologically, the word is derived from an old French verb 'bailer' which means to 'give' or 'to deliver', although another view is that its derivation is from the Latin term baiulare, meaning 'to bear a burden'. Bail is a conditional liberty. Strouds' Judicial Dictionary (Fourth Edition 1971) spells out certain other details. It states :
W " hen a man is taken or arrested for felony, CRM M-36767 of 2012 15 suspicion of felony, indicated of felony, or any such case, so that he is restrained of his liberty - And being by law bailable, offence surety to those which have authority to bail him, which sureties are bound for him to the Kings use in a certain sums of money, or body for body, that he shall appear before the Justices of Goale delivery at the next sessions etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed, that is to say, set at liberty until the day appointed for his appearance."
14. Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice.
15. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on one hand, the requirements of the society for being shielded from the hazards of being exposed to the mis-adventures of a person alleged to have committed a crime; and on the other, the fundamental cannon of criminal jurisprudence, viz, the presumption of innocence of an accused till he is found CRM M-36767 of 2012 16 guilty. Liberty exists in proportion to wholesome restrain, the more restraint on others to keep off from us, the more liberty we have"
It is settled law that undertrials are detained in judicial custody but if the under-trials are allowed to be detained in judicial custody for an indefinite period, Article 21 of the Constitution of India is violated. Every person, detained or arrested, is entitled to speedy trial and the possibility of trial concluding in short period in the present case is remote. A trial may take considerable time and the petitioner will have to remain unnecessarily in jail. Moreover, learned counsel for the CBI has already stated that the investigation is almost complete. The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime and presumption of innocence in favour of the alleged criminal. However, an accused is not detained in custody with the object of punishing him on the assumption of his guilt.
In the case of Siddharam Satlingappa Mhetre v.
State of Maharashtra, (2011) 1 SCC 694, the Hon'ble Supreme Court observed as under:-
"Just as liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important."
The Supreme Court has further observed:
CRM M-36767 of 2012 17
"116. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case."
In Moti Ram v. State of M.P., (1978) 4 SCC 47, the Hon'ble Supreme Court, while discussing pre-trial detention, held as under:
"14. The consequences of pre-trial detention are grave. Defendants presumed innocent arc subjected to the psychological and physical deprivations of jail life, usually under more onerous conditions than are imposed on convicted defendants. The jailed defendant loses his job if he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family."
In the present case, the minor daughter of the petitioner is already suffering from left bronchial plexopathy and is undergoing treatment at Nanavati Hospital, Mumbai. There is nothing specific that the amount was sought as a bribe. It is yet to be determined at the time of trial. The family and his minor daughter are suffering in the absence of the petitioner and even his daughter's further treatment has been delayed which was fixed for 3rd December, 2012.
The contention of the CBI is that evidence in the shape of voice recording clearly indicates the demand and acceptance of the bribe. Conversation and the statement of the complainant read together make out a prima facie case against the petitioner. This contention of the CBI cannot CRM M-36767 of 2012 18 be appreciated at this stage. It is cardinal rule, while deciding bail, Court is not required to consider technical questions. Here in this case, value of the conversation between complainant and the petitioner is in the shape of voice recordings. To appreciate its evidentiary value at this stage is unwarranted. It will prejudice the right of both, petitioner and the prosecution. It is the function of the Trial Court only.
In view of the above discussion, it is not necessary to refer to and discuss other issues canvassed by the learned counsel for the parties and the case laws relied upon in support of their respective contentions. I clarify here that I have not expressed any opinion on the merits of this case.
Resultantly, I order that the petitioner be admitted to bail subject to his furnishing bail bonds with two solvent sureties, each in a sum of Rs. 2 lacs to the satisfaction of the Special Judge, CBI Court, Chandigarh on the following conditions :-
a. The petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the Court or to any other authority.
b. He shall remain present before the Court on the dates fixed for hearing of the case. If he wants to remain absent, then he shall take prior permission of the court and in case of unavoidable circumstances for remaining absent, he shall immediately give intimation CRM M-36767 of 2012 19 to the appropriate court and also to the Superintendent, CBI and request to the court that he may be permitted to be present through the counsel.
c. He will not dispute his identity as the accused in the case.
d. He shall surrender his passport, if any (if not already surrendered), and in case, he is not a holder of the same, he shall swear to that effect on an affidavit. If he has already surrendered the passport before the Ld. Special Judge, CBI, that fact should also be supported by an affidavit.
e. This Court gives liberty to the CBI to make an appropriate application for modification/recalling this order, if for any reason, the petitioner violates any of the conditions imposed by this Court.
Disposed of accordingly
December 13, 2012 [Paramjeet Singh]
vkd Judge