Himachal Pradesh High Court
Gurnam Kaur vs State Of Himachal Pradesh on 21 November, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 1568 of 2019
Decided on November 21, 2019
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Gurnam Kaur ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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For the petitioner Mr. Divya Raj Singh, Advocate.
For the respondent Mr. Sudhir Bhatnagar and Mr.
Sumesh Raj, Additional
Advocates General with Mr.
r Kunal Thakur, Deputy Advocate
General.
ASI Rachhpal Singh, Police Station
Chintpurni, Una, Himachal
Pradesh.
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Sandeep Sharma, J. (Oral)
Bail petitioner namely Gurnam Kaur, who is behind the bars since 3.3.2019, has approached this Court in the instant petition filed under S.439 CrPC, for grant of bail in FIR No. 12, dated 3.3.2019, under S.439 B, C and D and S.34 IPC registered at Police Station Chintpurni, District Una, Himachal Pradesh.
2. ASI Rachhpal Singh has come present with the record. Mr. Kunal Thakur, learned Deputy Advocate General, also placed on record status report prepared by the investigating 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 21/11/2019 20:24:55 :::HCHP 2agency on the basis of investigation carried out by it. Record perused and returned.
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3. Record/status report reveals that on 3.3.2019, police, after having received secret information, intercepted vehicle bearing registration No. PB-13M-0023 and recovered counterfeit currency notes of Rs.57,700/-. Since no plausible explanation for possessing said currency, came to be rendered by the bail petitioner and other accused, police, after completion of codal formalities, registered FIR against bail petitioner and other accused under aforesaid provisions of law on 3.3.2019 and since then, accused including bail petitioner are behind the bars. As per investigating agency, it received information that some persons sitting in car bearing registration No. PB-13M-0023 are trying to use counterfeit/fake currency notes and as such, police laid Naka at Mubarikpur and ultimately recovered fake currency, as taken note herein above, from the dashboard and bags of the occupants of the car. During investigation, person namely Ishwar Chand also got his statement recorded with the police alleging therein that on 3.3.2019, bail petitioner had come to his shop with the intention to use fake currency but he, after having found Rs.2000 note to be fake, confronted the bail petitioner, who thereafter fled away from the spot. Investigation in the case is complete and Challan stands filed in the competent Court of law, but investigating agency is contemplating to file a supplementary ::: Downloaded on - 21/11/2019 20:24:55 :::HCHP 3 Challan under S.173(3) CrPC, as stated by learned Deputy Advocate General.
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4. Mr. Kunal Thakur, learned Deputy Advocate General, while fairly stating that investigation is complete and nothing remains to be recovered from the bail petitioner, strenuously argued that keeping in view the gravity of offence alleged to have been committed by bail petitioner, she does not deserve any leniency, rather the bail petitioner needs to be dealt with severely as such, petition may be rejected outrightly. While referring to the statement of Ishwar Chand recorded by police, learned Deputy Advocate General vehemently argued that it stands established on record that it was bail petitioner, who made an attempt to use fake currency notes for buying some articles from the shop of complainant, Ishwar Chand, as such, she has been rightly booked under S.489C and S.34 IPC alongwith other accused. Lastly, Mr. Thakur, learned Deputy Advocate General argued that since the offence alleged to have been committed by bail petitioner is not only grave but has an adverse impact on the economy of the country, as such, prayer made on behalf of the bail petitioner deserves outright rejection. Mr. Thakur, further contended that there is every possibility of petitioner fleeing from justice as she hails from Punjab, as such, she cannot be enlarged on bail at this stage, especially when evidence of the prosecution is yet to be recorded by learned trial Court.
::: Downloaded on - 21/11/2019 20:24:55 :::HCHP 45. Having heard learned counsel for the parties and perused the material available on record, this Court finds that on .
3.3.2019, Police after having received secret information, intercepted car bearing registration No. PB-13M-0023, wherein, admittedly, the bail petitioner was one of the occupants. Though Mr. Divya Raj Singh, Advocate contended that recovery, if any, from the car was not from the bail petitioner but material placed on record clearly reveals that the Police, at the time of effecting recovery associated independent witness. Record clearly reveals that fake currency came to be recovered from dashboard of the car owned by one Paramjeet and being driven by Jasbir Singh, who happened to be the brother of the bail petitioner, Gurnam Kaur. As per investigation, currency notes came to be recovered from the bag and purse belonging to persons namely Jasbir and Gurpreet Kaur. It is not in dispute that no currency ever came to be recovered from the person or belongings of the bail petitioner.
Specific case against the bail petitioner is that she tried to use fake currency note in the shop at Chintpurni. As has been taken note herein above person namely Ishwar Chand after five days of registration of case got his statement recorded with the police that the bail petitioner had come to his shop with the intention to use fake currency of Rs.2000/-. On the basis of aforesaid statement, bail petitioner has been implicated in the case.
::: Downloaded on - 21/11/2019 20:24:55 :::HCHP 56. True it is that the bail petitioner was one of the occupants of the car apprehended by the Police on the date of .
alleged incident, but as has been taken note herein above, no fake currency note, if any, ever came to be recovered from the person or belongings of the bail petitioner, rather, the counterfeit currency came to be recovered from the dashboard of the car and two bags belonging to the accused namely Jasbir and Gurpreet Kaur. It has also come in the investigation that accused Jasbir Singh and Gurnam Kaur had taken one premises at Patiala on rent for running some NGO but they were printing fake currency notes, as has been admitted by Jasbir Singh. Investigating agency, in its status report, has stated that since the bail petitioner happened to be the sister of the kingpin, Jasbir, her involvement in the alleged crime cannot be denied.
7. This Court cannot lose sight of the fact that the statement of Ishwar Chand, wherein he stated that the bail petitioner attempted to use fake currency note, came to be recorded five days after alleged incident, whereas, case against bail petitioner alongwith others came to be registered on 3.3.2019, hence, there appears to be considerable force in the argument of Mr. Divya Raj Singh, learned counsel for the bail petitioner that at the time of recovery of currency from car in question, no crime, if any, could be said to have been committed by the bail petitioner. Merely relation, if any, of the bail petitioner ::: Downloaded on - 21/11/2019 20:24:55 :::HCHP 6 with Jasbir Singh, cannot be a ground to conclude that the bail petitioner was also a part of the racket, which apart from printing .
fake notes, was also intending to use the same as genuine. There is no explanation, if any, on record, that what prevented the complainant from reporting the matter to the police at the first instance. Explanation rendered on record by learned Deputy Advocate General that Ishwar Chand, complainant, approached Police after having read news item in newspaper, cannot be accepted as a plausible explanation, rather same appears to be an attempt on the part of prosecution to create evidence.
8. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence collected on record by the investigating agency, however having taken note of the fact that no fake currency ever came to be recovered from the person or belongings of bail petitioner, coupled with the fact that she has no connection, if any, with the NGO, from where, scanner and other equipments came to be recovered, this court sees no reason to let bail petitioner incarcerate in jail for an indefinite period during trial, especially when she has already suffered for more than eight months.
9. 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 held that freedom of an individual can ::: Downloaded on - 21/11/2019 20:24:55 :::HCHP 7 not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon'ble Apex .
Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held 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 the evidence or influence ::: Downloaded on - 21/11/2019 20:24:55 :::HCHP 8 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 first-time 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 Re-Inhuman Conditions in 1382 Prisons."::: Downloaded on - 21/11/2019 20:24:55 :::HCHP 9
10. By now it is well settled that gravity alone cannot be a 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 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 ::: Downloaded on - 21/11/2019 20:24:55 :::HCHP 10 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 rhim a taste of imprisonment as a lesson."
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. 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 ::: Downloaded on - 21/11/2019 20:24:55 :::HCHP 11 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 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."::: Downloaded on - 21/11/2019 20:24:55 :::HCHP 12
13. The Apex Court in Prasanta Kumar Sarkar versus 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;
(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 r influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
14. In view of above, bail petitioner has carved out a case for herself. Consequently, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.5,00,000/-(Rupees Five Lakh) with one local surety in the like amount, to the satisfaction of the Investigating Officer/learned trial Court concerned, besides the following conditions:
(a) She shall make herself 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) She shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) She shall not make any inducement, threat or promises to any person acquainted with the facts of ::: Downloaded on - 21/11/2019 20:24:55 :::HCHP 13 the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) She shall not leave the territory of India without the prior permission of the Court.
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(e) She shall surrender passport, if any, held by her.
15. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon her, the investigating agency shall be free to move this Court for cancellation of the bail.
16. 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 November 21, 2019 (vikrant) ::: Downloaded on - 21/11/2019 20:24:55 :::HCHP