Rajinder Bindra vs State Of Himachal Pradesh on 14 September, 2018

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Himachal Pradesh High Court

Rajinder Bindra vs State Of Himachal Pradesh on 14 September, 2018

Bench: Sandeep Sharma

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 1028 of 2018 Date of Decision No. 14.09.2018 .

__________________________________________________________ Rajinder Bindra ........ 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. Vinay Thakur, Advocate.

For the respondent: Mr. S.C.Sharma & Dinesh Thakur, Additional Advocate Generals, with Mr. Amit Kumar, Deputy Advocate General.

__________________________________________________________ Sandeep Sharma, Judge (oral):

Bail petitioner, namely Rajinder Bindra apprehending his arrest in case FIR No.61 of 2018, dated 26.4.2018, under Sections 419 & 420 of Indian Penal Code (for short 'IPC'), registered at police Station, Palampur, District Kangra, Himachal Pradesh, has approached this Court in the instant proceedings, seeking therein prearrest bail.

Whether the reporters of the local papers may be allowed to see the judgment?

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2. Pursuant to order dated 7.9.2018, SI Lachhi Ram Police Station, Palampur, District Kangra, has come present .

alongwith the record. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record fresh status report prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned.

3. Close scrutiny of the record/status report, reveals that complainant, namely Col. Vikrant Singh filed online complaint with police Station, Palampur, alleging therein that his land measuring 00.57.84 hectares, situate at Palampur has been sold unauthorizedly by the bail petitioner in connivance with the few people and as such, appropriate action may be taken against him. During the investigation of the case police found that forged General Power of Attorney(s) of complainant Sh. Vikrant Singh and his sister Mrs. Saloni were prepared/ manufactured by the present bail petitioner, on the basis of which, land in question subsequently came to be sold to persons, namely Mast Ram and Gurbachan Singh. During investigation police also found that two General Power of Attorneys were made ::: Downloaded on - 15/09/2018 22:59:33 :::HCHP 3 i.e. one in the name of Mast Ram and another in the name of Om Prakash, who on the strength of aforesaid GPAs, unauthorizedly .

sold the land to his son and person namely Gurbachan Singh. As per record/status report, though cases stand registered against the bail petitioner, Mast Ram and Atma Ram but at present person namely, Mast Ram is on bail, whereas another coaccused Atma Ram and Om Prakash are behind the bars.

4. Mr. Vinay Thakur, learned counsel representing the petitioner while referring to the record/status report, vehemently argued that no case, if any, is made out against the bail petitioner and as such, he deserves to be enlarged on bail. While inviting attention of this Court to the material adduced on record by the investigating agency, Mr. Thakur, learned counsel for the bail petitioner made an attempt to persuade this Court to agree with his contention that GPAs in question were never prepared/ manufactured by the present bail petitioner, rather as per investigation conducted by the investigating officer, GPAs were prepared and manufactured by a person namely, Mast Ram and Atma Ram, who subsequently sold the land on the strength of ::: Downloaded on - 15/09/2018 22:59:33 :::HCHP 4 those GPAs to the son of Mast Ram and Gurbachan Singh. Mr. Thakur, further contended that there is no record available on .

the file suggestive of the fact that at any point of time present bail petitioner was associated by coaccused Mast Ram and Om Prakash while preparing/manufacturing the forged GPAs. He further contended that true it is that sum of Rs. 3 lakh was transferred from the account of the bail petitioner in favour of the complainant, but that cannot be a ground to conclude that bail petitioner was involved in the crime alleged to have been committed by other coaccused Mast Ram and Om Prakash.

5. With a view to substantiate his aforesaid argument, Mr. Thakur, contended that as per own statement of the complainant, bail petitioner was closely related to him and at one point of time father of the complainant executed Special General Power of Attorney in favour of the petitioner authorizing him to get the mutation effected in the name of his son and daughter qua the land at Palampur. Lastly, Mr. Thakur, contended that bail petitioner has already joined the investigation and as such, no fruitful purpose would be served in case the prayer for ::: Downloaded on - 15/09/2018 22:59:33 :::HCHP 5 custodial interrogation of the bail petitioner is accepted. He further stated that bail petitioner is a Government employee and .

as such, shall always remain present for investigation as well as trial of the case as and when required and there is no likelihood of his fleeing from justice.

6. Mr. Dinesh Thakur, learned Additional Advocate General, though admitted that bail petitioner has joined the investigation, but on the instructions of the Investigating officer, stated that bail petitioner is not disclosing the names of the persons, who at the time of execution of sale deed had represented themselves to be the owners of the land in question and as such, investigating agency is finding it difficult to conclude the trial in time bound manner. He further contended that on 9th September, 2018 bail petitioner pursuant to order passed by this Court had joined the investigation, but thereafter he never turned up and as such, his prayer for enlargement on bail may be rejected.

7. While refuting the aforesaid contention having been made by Mr. Vinay Thakur, learned counsel for the petitioner ::: Downloaded on - 15/09/2018 22:59:33 :::HCHP 6 that there is no direct evidence against the bail petitioner to connect him with the alleged crime. Mr. Thakur, learned .

Additional Advocate General while referring to certain documents adduced on record made serious attempt to persuade this Court to agree with his contention that bail petitioner is the master mind behind this crime. He further stated that no explanation has been rendered on record by the bail petitioner qua the amount allegedly transferred by him in the account of the complainant as well as issuance of cheques, amounting to Rs.

18 lakh. Learned Additional Advocate General, on the instructions of the investigating officer, further contended that during investigation police has recovered two agreements to sell qua the land in question, wherein bail petitioner has also appended his signatures and as such, it can be concluded that bail petitioner facilitated the sale taking undue advantage of Special General Power of Attorney executed in his favour by the father of the complainant.

8. I have heard learned counsel for the parties and perused the record carefully.

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9. Careful perusal of the material available on record, suggests that complainant though had acquired knowledge with .

regard to sale of his land on the basis of forged GPA about 10 months prior to lodging of FIR, but there is no explanation that why he kept mum for considerable time of 10 months before lodging the FIR. Similarly, this Court finds that there is nothing on record suggestive of the fact that GPA(s) in question were actually prepared/manufactured by the bail petitioner, rather same appeared to have been prepared and manufactured by co accused Mast Ram and Om Prakash. Though, in the complaint complainant has named the present bail petitioner, but in the investigation there is nothing, from where it can be inferred that bail petitioner taking undue advantage of Special General Power of Attorney executed in his favour by the father of the complaint, got GPAs prepared/manufactured in connivance with the revenue authorities as well as coaccused Mast Ram and Om Prakash. Mere statement of coaccused cannot be a ground to conclude that coaccused Om Prakash and Mast Ram prepared/ ::: Downloaded on - 15/09/2018 22:59:33 :::HCHP 8 manufactured the GPAs on the askance of present bail petitioner.

10. Similarly, this Court finds that at present there is no evidence adduced on record by the investigating agency, suggestive of the fact that money in cash as well as cheques were paid by the bail petitioner to the complainant on account of land allegedly sold by him on the strength of forged GPAs. There is nothing in the statement of the complainant recorded under Section 161 Cr.P.C, from where it can be inferred that bail petitioner at any point of time had conceded before him that he unauthorizedly using Special General Power of Attorney executed in his favour by his father, prepared forged GPAs and thereafter sold the land. Rather, it emerge from the statement of the complainant that at one point of time bail petitioner was interested in buying land in question from the father of the complainant, but for some reasons deal could not be materialized.

11. Though, complainant in his statement recorded under Section 161 Cr.P.C. admitted that he has received Rs.

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9,75,000/ in cash from the present bail petitioner,but this Court is an agreement with Mr. Vinay Thakur, learned counsel for the .

petitioner that receipt of money, if any, cannot be a basis or ground to arrive at a conclusion that aforesaid money was paid by the bail petitioner on account of sale, if any, made by him pursuant to the forged GPAs, especially when by way of forged GPAs, co accused Mast Ram and Om Prakash were authorized to sell the land.

12. Though, aforesaid aspects of the matter are to be considered and decided by the court below on the basis of the evidence, if any, adduced on record by the investigating agency, but at this stage, this Court having perused the record, sees no reasons for custodial interrogation of the bail petitioner, who otherwise has joined the investigation.

13. Mr. Vinay Thakur, learned counsel representing the bail petitioner, on the instructions of his client, who is present in Court, undertakes that bail petitioner shall join investigation tomorrow, to enable the investigating agency to conclude the investigation in time bound manner, failing which, investigating ::: Downloaded on - 15/09/2018 22:59:33 :::HCHP 10 agency shall be free to move this Court for cancellation of the bail.

14. It has been repeatedly held by Hon'ble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved, in accordance with law.

15. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr.,decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it ::: Downloaded on - 15/09/2018 22:59:33 :::HCHP 11 would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment .

are reproduced as under:

2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception.

Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with ::: Downloaded on - 15/09/2018 22:59:33 :::HCHP 12 the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that .

person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a firsttime offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.

5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In ReInhuman Conditions in 1382 Prisons ::: Downloaded on - 15/09/2018 22:59:33 :::HCHP 13

16. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court .

Cases 49; held as under: " The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.

Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted 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 ::: Downloaded on - 15/09/2018 22:59:33 :::HCHP 14 refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."

17. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail.

Court has to keep in mind nature 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.

18. The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

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(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.

19. Consequently, in view of the above, order dated 10.8.2018, passed by this Court, is made absolute, subject to petitioner's furnishing personal bonds in the sum of Rs.

2,00,000/( Rs. Two Lakh) with two sureties in the like amount, to the satisfaction of the learned trial Court, besides the 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;

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b. he shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

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c. he shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or the Police Officer; and d. he shall not leave the territory of India without the prior permission of the Court.

e. he shall surrender passport, if any, held by him.

20.

It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.

21. 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 application alone.

The bail petition stands disposed of accordingly.

Copy dasti.

(Sandeep Sharma), Judge 14th September, 2018 (shankar) ::: Downloaded on - 15/09/2018 22:59:33 :::HCHP

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