Himachal Pradesh High Court
Jaswinder Singh vs State Of Himachal Pradesh on 25 September, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
.
Cr. MP(M) No. 1686 of 2019
Date of Decision: 25th September, 2019
Jaswinder Singh .......Petitioner
Versus
State of Himachal Pradesh .....Respondent.
Coram:
Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting? 1
For the petitioner: Mr. M.S.Thakur and Rahul Gautam,
Advocates.
For the respondent: Mr. Sudhir Bhatnagar & Sumesh
Raj, Additional Advocate Generals,
with Mr. Kunal Thakur, Deputy
Advocate General.
__________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioner namely, Jaswinder Singh, has approached this Court in the instant proceedings filed under Section 438 of the Cr.P.C., for grant of anticipatory bail in case FIR No. 259/2017, dated 5.12.2017, under Sections 406, 420 read with Section 34 of IPC, registered at police Station, Baddi, District Solan, Himachal Pradesh.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 22. Sequel to orders dated 6th/13th.9.2019, ASI Nahender Jit Khata, has come present alongwith the .
record. Mr. Sudhir Bhatnagar, 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.
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on
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Record/status report made available to this Court reveals that 5.12.2017, complainant namely, Sh.
Ramesh Kumar, lodged a complaint at police Station, Baddi, District Solan, H.P., alleging therein that he and his wife had deposited a sum of Rs.1,08,000/ and Rs. 91,800/ respectively, in their accounts No. 01010135000522 and 01010101000852 in the Shine Baddi Nalagarh Cooperative NATC Society Limited, but now people running the Society have fled away with their money and as such, necessary action, in accordance with law, be taken against the Officials of the Society. On the basis of aforesaid complaint, formal FIR, as detailed hereinabove, came to be lodged against the present bail petitioner and other coaccused namely, ::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 3 Chandan Chawla, Charan Singh and Rahul Basra, who were working as Vice Chairman, Chairman ,Secretary and .
cashier, respectively in the Society. During investigation police found that Society concerned was registered with the Registrar Cooperative Societies, Solan, H.P. on 31.01.2016.
Coaccused namely, Chandan Chawla, Charan Singh, Rahul Basra and present bail petitioner had been rendering their services in the Society in the capacity of Chairman, Secretary, Cashier and Vice Chairman, respectively. It also emerge from the record that persons, named hereinabove, with a view to run the Society also appointed some agents so that money is collected from the people of the area on daily basis. Allegedly, between 16.2.2016 to 18.7.2017 society in question collected rupees in crores and thereafter they also refunded partial amount to the depositors.
Investigation further reveals that after 18.7.2017 neither any register with regard to cash received by accused from the local people was maintained nor money, as referred hereinabove, was returned to the depositors. Though, ::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 4 initially complaint was made to Registrar Cooperative Society, Solan, but it appears that no record was made .
available to the Officers of the Cooperative Society, Solan and as such, matter came to be landed before the police.
Investigation further reveals that members of the Managing Committee deposited the amount allegedly received from the depositors in four banks i.e. Punjab National Bank, Baddi, HDFC Bank, Baddi, Axis Bank, Baddi and Jogindra Co operative Bank Baddi. Though, members running management of the Society concerned, also issued cheques to the depositors, but the same were dishonoured. Co accused namely, Chandan Chawla and Charan Singh, who happened to be Chairman and Secretary of the society are behind the bars, whereas person namely, Rahul Basra, who was rendering his services as cashier stands enlarged on bail vide order dated 30th August, 2019 passed by this Court in Cr.MP(M) No.1446 of 2019. Above named accused Rahul Basra before grant of bail, as referred hereinabove, deposited sum of Rs.20 lac with the Investigating Agency.
::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 5During hearing of Cr.MP(M) No.1446 of 2019 titled as Rahul Basra vs. State of Himachal Pradesh, .
Investigating Officer informed this Court that present bail petitioner Jaswinder Singh has since joined the investigation, he does not intend to arrest him. But it appears that when the bail petitioner refused to refund the money allegedly embezzled by him, police made an effort to arrest him, but he approached this Court by way of instant petition, seeking therein anticipatory bail.
4. On 13.9.2019, Investigating Officer while placing on record status report, contended that as per audit report a sum of Rs. 1, 29,000/ is alleged to have been misappropriated by the present bail petitioner and as such, learned counsel representing the bail petitioner sought some time, enabling the bail petitioner to deposit the aforesaid amount. Today, during the proceedings of the case, it has been informed that sum of Rs. 1, 50,000/ has been deposited ::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 6 by the present bail petitioner, which fact has been fairly acknowledged by the learned Additional Advocate General.
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5. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly acknowledging the factum with regard to receipt of Rs.1:50 lakh, contended that though nothing remains to be recovered from the bail petitioner at this stage, but keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency, rather needs to be dealt with severely. He further contended that as per the investigation, more than Rs.60 lakh have been misappropriated by the accused, named in the FIR. He further contended that since bail petitioner is from Chandigarh, there is every likelihood of his fleeing from justice in the event of his being enlarged on bail and as such, prayer made on his behalf may be rejected at this stage.
6. Having heard learned counsel representing the parties and perused the material available on record, this ::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 7 Court finds that present bail petitioner was rendering his services as Vice Chairman in the Shine Baddi Nalagarh .
NATC, Cooperative Society, which allegedly misappropriated a sum of Rs. 65 lakh of the depositors. The Chairman and Secretary of aforesaid Cooperative Society being overall Incharge of the Society, are already behind the bars. It also emerge from the record that bail petitioner had resigned from the post of Vice Chairman in the year, 2016, whereas FIR in question came to be lodged on 5.12.2017. Material placed on record further reveals that factum with regard to resignation having been made by the present bail petitioner was also made known to the Registrar Cooperative Society. It is none of the case of the Investigating Agency that present bail petitioner misappropriated the funds of the Society because admittedly there is no complaint, if any, ever came to be filed on behalf of the Society that present bail petitioner misappropriated the funds, rather action, if any, came to be taken against the society and its officials on the basis of the complaint made ::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 8 by the depositors, who alleged that society concerned after collecting their money closed the Society and as such, there .
appears to be considerable force in the argument of learned counsel representing the petitioner that it would be premature to conclude at this stage that entire sum of Rs.
6065 lakh was misappropriated by the present bail petitioner, who otherwise had resigned prior to the registration of the case.
7. Leaving everything aside, record reveals that as per audit report a sum of Rs. 1, 29,000/ has been found to be misappropriated by the present bail petitioner during his tenure as Vice Chairman, which amount has been already deposited by the bail petitioner with the Investigating Agency. Since amount alleged to have been misappropriated stands deposited, this Court sees no necessity for the custodial interrogation of the bail petitioner, who otherwise from day one has been fully cooperating with the Investigating Agency, as has been fairly admitted by the Investigating Officer present in Court. Apprehension ::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 9 expressed by learned Additional Advocate General with regard to petitioner's fleeing from justice in the event of his .
being enlarged on bail, can be best met by putting bail petitioner to stringent conditions, as has been fairly admitted by the learned counsel representing the bail petitioner.
8. Guilt, if any, of the bail petitioner is yet to be established on record by the Investigating Agency and as such, it would not be fair to curtail his freedom for an indefinite period during trial, especially when nothing remains to be recovered from him.
9. It has been repeatedly held by Hon'ble Apex Court as well as this Court in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law.
10. 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 ::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 10 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 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 ::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 11 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 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 ::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 12 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
11. 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 ::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 13 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 refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."
12. 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 ::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 14 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.
13. 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;
(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;::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 15
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being .
thwarted by grant of bail.
14. Consequently, in view of the above, order dated 6.9.2019, passed by this Court, is made absolute, subject to his furnishing personal bond in the sum of Rs. five lakh with one local surety in the like amount to the satisfaction of the Investigating Officer, 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 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.
15. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, ::: Downloaded on - 26/09/2019 20:33:39 :::HCHP 16 the investigating agency shall be free to move this Court for cancellation of the bail.
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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 application alone.
Copy dasti.
r to The bail petition stands disposed of accordingly.
(Sandeep Sharma), Judge 25th September, 2019 (shankar) ::: Downloaded on - 26/09/2019 20:33:39 :::HCHP