Himachal Pradesh High Court
__________________________________________________________ vs State Of Himachal Pradesh on 7 March, 2019
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH,
SHIMLA
Cr. MP(M) No. 242 of 2019
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Date of Decision: 7th March, 2019
__________________________________________________________
Akashy Goyal ........ 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. George, Advocate.
For the respondent: Mr. S.C.Sharma & Mr. Dinesh
Thakur, Addl. Advocate Generals with
Mr. Amit Kumar Dhumal, Deputy
Advocate General.
__________________________________________________________
Sandeep Sharma, Judge (oral):
Bail petitioner namely, Akashy Goyal, has approached this Court in the instant proceedings filed under Section 438 of the Code of Criminal Procedure, praying therein for grant of anticipatory bail in case FIR No.29/2019, dated 17.1.2019, under Section 406 of IPC, registered at police Station, Sadar, District Una, Himachal Pradesh.
1Whether the reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 08/03/2019 21:59:52 :::HCHP 22. Sequel to order dated 26.2.2019, whereby bail petitioner was ordered to be enlarged on interim bail in the .
event of his arrest on his furnishing bail bonds in the sum of Rs. 20,000/ with one surety in the like amount to the satisfaction of Investigating Officer, ASI Rajinder Kumar, has come present in Court alongwith the record. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record 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 on 14.1.2019, Principal, Govt. Industrial Training Institute, Una lodged a complaint at police Station, Sadar, District Una, H.P., alleging therein that Industrial Training Institute, Una had placed order with M/s Perfect Furniture and Fabricator, Opposite Professor Colony, Una, run by the present bail petitioner for manufacturing of the desks. As per agreed terms, Industrial Training Institute, Una had given the supply order of Rs.2,32,500/ to the firm of bail petitioner and on 29.8.2018, a sum of Rs. 1, 40,000/ was paid in advance.
::: Downloaded on - 08/03/2019 21:59:52 :::HCHP 3Subsequently, on 3.10.2018 Industrial Training Institute, Una after completion of the work made complete payment of Rs.
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2,32,500/ to the bail petitioner on the basis of the final bill by remitting the amount directly in his bank account. On 5.10.2018, official of Industrial Training Institute, Una found that inadvertently a sum of Rs. 1, 40,000/, which was paid in advance could not be deducted while making final payment to the bail petitioner and as such, Principal, Industrial Training Institute , Una telephonically asked the present bail petitioner to return sum of Rs. 1, 40,000/ immediately. Record further reveals that bail petitioner while fairly acknowledging the factum with regard to receipt of Rs.1, 40,000/ over and above actual due amount, assured the Principal, Industrial Training Institute, Una to return the aforesaid amount within period of 34 days. But since he failed to make the payment despite repeated requests having been made by the Industrial Training Institute, Una, aforesaid complaint having been filed by the Principal, Industrial Training Institute, Una came to be lodged against the present bail petitioner at police Station, Sadar, District Una, H.P. Subsequently, on 17.1.2019 police ::: Downloaded on - 08/03/2019 21:59:52 :::HCHP 4 lodged FIR detailed hereinabove, on the basis of aforesaid complaint and registered the case under Section 406 of IPC .
against the present bail petitioner.
4. Today, during the proceedings of the case, Mr. Dinesh Thakur, learned Additional Advocate General, on the instructions of Investigating Officer, who is present in Court, fairly stated that pursuant to order dated 26.2.2019, bail petitioner has joined the investigation and as such, his custodial interrogation is not required. Learned Additional Advocate General further stated on instructions that a sum of Rs. 1, 45,000/ allegedly received in excess by bail petitioner has been also repaid to the Principal, Industrial Training Institute, Una. Lastly, learned Additional Advocate General contended that in the event of petitioner's being enlarged on bail, he may be directed to make himself available for investigation/trial as and when directed by the Investigating Agency.
5. Mr. George, learned counsel representing the petitioner, while inviting attention of this Court to the provisions contained under Section 406 of IPC visavis ::: Downloaded on - 08/03/2019 21:59:52 :::HCHP 5 complaint having been filed by the complainant, strenuously argued that no case much less under Section 406 of IPC is .
made out against the present bail petitioner. He further contended that it is none of the case of the complainant that bail petitioner received a sum of Rs. 1, 40,000/ in excess by playing fraud, rather amount, if any, came to be deposited in excess by the complainant itself. He further contended that there is nothing on record to infer that bail petitioner at any point of time refused to refund the aforesaid amount, rather he asked for sometime because he had spent the amount received in his bank account.
6. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that an amount of Rs 1, 40,000/ in excess came to be deposited in the bank account of the bail petitioner by the Principal, Govt. Industrial Training Institute, Una itself, who subsequently, after having discovered aforesaid mistake, asked the bail petitioner to refund the amount. There is nothing on record suggestive of the fact that bail petitioner refused to return the amount, rather he very candidly asked ::: Downloaded on - 08/03/2019 21:59:52 :::HCHP 6 for time on the ground that he has already spent amount received by him in excess. Since, the amount received in excess .
by bail petitioner stands already refunded to the complainant, there is no reason for this Court to reject the prayer made in the present petition for grant of bail. Moreover, learned Additional Advocate General has already made a statement that custodial interrogation of bail petitioner is not required.
The question whether case, if any, is made out against the bail petitioner under Section 406 of IPC, is to be decided by the learned trial Court on the basis of the totality of evidence collected on record by the investigating agency, but this Court after having carefully perused the contents of complainant vis avis provision contained under Section 406 of IPC, wishes to observe that police officials while registering case(s), if any, against individual(s) on the basis of complaint(s), if any, filed by the complainant(s) are required to atleast peruse the bare provisions of law visavis allegations contained in the complaint(s), so that person against whom case is sought to be lodged is not unduly harassed. In this case as well as number of cases it has come to the notice of the court that police ::: Downloaded on - 08/03/2019 21:59:52 :::HCHP 7 officials while registering case(s) on the basis of the complaint(s), proceeds to incorporate various sections of IPC .
or any other law, in most cursory manner without bothering to look into applicability of the same qua the allegations contained in the complaint(s), causing undue harassment to the person named in the complaint, who on account of such complaints are subsequently made to suffer agony of protected trials. This Court hopes and trust that learned Additional Advocate General would bring aforesaid observations made by this Court to the notice of the appropriate quarters, so that necessary arrangement for proper training to the police officials are made forthwith.
7. 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.
8. 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 ::: Downloaded on - 08/03/2019 21:59:52 :::HCHP 8 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 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 ::: Downloaded on - 08/03/2019 21:59:52 :::HCHP 9 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 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 ::: Downloaded on - 08/03/2019 21:59:52 :::HCHP 10 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
9. 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 ::: Downloaded on - 08/03/2019 21:59:52 :::HCHP 11 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."
10. 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 ::: Downloaded on - 08/03/2019 21:59:52 :::HCHP 12 accused, circumstances which are peculiar to the accused involved in that crime.
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11. 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;
(vii) reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being
(viii) thwarted by grant of bail.
12. Consequently, in view of the above, order dated 26.2.2019, passed by this Court is made absolute subject to the petitioner furnishing personal bond in the sum of Rs.
1,00,000/ (Rs. One lakh) with one surety in the like amount, ::: Downloaded on - 08/03/2019 21:59:52 :::HCHP 13 to the satisfaction of the Investigating Officer, besides the following conditions:
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a. He 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. 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.
13. 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.
14. 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 7th March, 2019 (shankar) ::: Downloaded on - 08/03/2019 21:59:52 :::HCHP