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2001 DIGILAW 297 (HP)

ROSHAN LAL MISHRA v. STATE OF H. P.

2001-10-19

K.C.SOOD

body2001
JUDGMENT Kuldip Chand Sood, J.—Petitioner Roshan Lal Mishra has filed this petition under Section 438 of the Code of Criminal Procedure for the grant of pre-arrest bail in case registered with Police Station (West), Shimla in terms of First Information Report No. 144 of 2001, dated May 28, 2001 for offences punishable under Sections 419, 42u, 468, 469, 471, 511 and 120-B IPC. Few facts may be noticed: 2. Shri Rattan Singh is a sitting Member of the H.P. Legislative Assembly from 18-Paonta Doon Constituency. It appears, a fax letter was received by the Speaker of the H.P. Vidhan Sabha on May 21, 2001 purporting to be from Shri Rattan Singh MLA resigning from Membership of the Vidhan Sabha. The letter was dated May 21, 2001. Ob May 23, 2001. Shri Rattan Singh appeared before the Honble Speaker and denied having written/sent any letter of resignation dated May 19, 2001 from the membership of H.P. Vidhan Sabha. He also gave a letter in person to the Honble Speaker stating that the resignation letter was a conspiracy by his political detractors and demanded a police inquiry into the matter for taking suitable action against the person(s) who sent this forged letter of resignation. The Secretary, Vidhan Sabha on May 26, 2001 sent copies of these two letters to the Director General of Police with a request to take suitable action after necessary inquiry. Pursuant to the letter of the Secretary Vidhan Sabha, a case, as notice above, was registered with Police Station (West) Shimla on May 28, 2001. 3. The investigation of the case was entrusted to the State CID after the registration of the case. 4. Petitioner Roshan Lal Mishra was Congress Mandal President of Paonta Sahib and a close confidant of Shri Rattan Singh MLA from 1993 to 1998. He looked after the Constituency work of Shri Rattan Singh. However, petitioner and Rattan Singh fell out. The petitioner resigned from the Presidentship of Mandal Congress Committee. Thereafter politically, both of them were draggers drawn. The petitioner, therefore, is suspect in the present case. 5. According to the petitioner, he has nothing to do with the letter of resignation received by the Honble Speaker of the Vidhan Sabha. He is being implicated in this case for political reasons and, therefore, he apprehends his arrest. Thereafter politically, both of them were draggers drawn. The petitioner, therefore, is suspect in the present case. 5. According to the petitioner, he has nothing to do with the letter of resignation received by the Honble Speaker of the Vidhan Sabha. He is being implicated in this case for political reasons and, therefore, he apprehends his arrest. Petitioner in his petition states that he would undertake to co-operate in the investigation and make himself available for interrogation as and when required to do so by the Investigating Agency. He also undertake not to interfere with the investigation or tamper with the prosecution evidence and abide by any terms and conditions as may be imposed by the Court. 6. According to the reply filed by the Investigating Officer, the petitioner, prima facie, is involved in the case. Accused had stated before certain persons that he has a letter pad of MLA Rattan Singh and he can send letter of resignation of Rattan Singh to Shimla and Delhi. A grievance is also made that petitioner is not co-operating with the investigation and had not disclosed anything about the "original resignation letter and where the petitioner typed the resignation letter and how many persons are involved in this conspiracy". The Investigating Agency also apprehends that since the petitioner is a political person, therefore, he could tamper with the prosecution witnesses. 7. It is noticed that after the registration of the case, the investigation was headed by various Officers but without much headway. During the course of investigation, it was discovered that the fax letter was sent from a booth at "Vikas Nagar" in the District of Dehradun (Uttranchal). However, the owner of the booth informed the Police that he cannot identify the person(s) who had come to fax this letter. Shri Rattan Singh, MLA suspects Balbir Singh, his former P. A., Roshan Lal, the present petitioner and some other persons, who may have political scores to settle with him, in faxing his resignation. It appears that petitioner was interrogated on several occasions. He was also interrogated on 12.10.2001 at Paonta Sahib. The Investigating Officer had wanted him to come to Shimla for further interrogation to which initially the petitioner agreed but leteron, slipped away and thereafter filed the present petition. 8. It appears that petitioner was interrogated on several occasions. He was also interrogated on 12.10.2001 at Paonta Sahib. The Investigating Officer had wanted him to come to Shimla for further interrogation to which initially the petitioner agreed but leteron, slipped away and thereafter filed the present petition. 8. Learned Counsel for the petitioner contends that First Information Report was lodged on 28th May, 2001, almost five months back and petitioner, during this period was available and joined the investigation as required by the Police. It is now only under the political pressure when the Police has not been able to make any headway that the petitioner is sought to be made scapegoat. He also contends that the mother of the petitioner who is 95 years of age is on the death bed and that his sisters son expired on 17.10.2001. The petitioner is to attend the last rites of his sisters son and also attend the aged mother. Mr. Ramakant Sharma contends that the petitioner has been implicated for political reasons and, therefore, his personal liberty should not be jeopardized in the absence of any tangible evidence against the petitioner on record. 9. Mr. Guleria, on the other hand, submits that the evidence of the various witnesses recorded by the Investigating Agency shows the implication of the petitioner. He particularly refers to the statements of Mohammad Hussain, Irshad Ali, Ramesh Kumar, Abdul Sattar, Ghasi Ram and Suppa Ram recorded under Section 161 of the Code of Criminal Procedure. According to him, custodial interrogation of the petitioner is necessary, particularly to recover "original forged letter of resignation". 10. The perusal of the record shows that the petitioner had proclaimed before some of the witnesses that he could send the resignation of Rattan Singh MLA to Shimla or Delhi at any time, 11. Mr. Ramakant Sharma refers to Nirmal Walia and another v. The State, 1982 SLJ (Vol. 12) 415, and contends that pre-arrest bail cannot be denied on the ground that some recovery is to be affected from the petitioner. In Nirmal Walia, in a case for offences punishable under Sections 420, 465, 468, 471 IPC, pre-arrest bail was opposed on the ground that several recoveries were expected to be made through the petitioner. In such a situation. In Nirmal Walia, in a case for offences punishable under Sections 420, 465, 468, 471 IPC, pre-arrest bail was opposed on the ground that several recoveries were expected to be made through the petitioner. In such a situation. Bail was granted with the clarification that even if petitioners are enlarged on anticipatory bail, there shall not be legal hitch in the application of the Section 27 of the Indian Evidence Act because the petitioner continued to be under apprehension and "in custody of the Police Officer" for the purposes of Section 27 of the Evidence Act. 12. Mr. Ramakant also referred to Ram Swaroop v. The State (Delhi Administration), 1986 Cr LJ 526 and K.N. Aggarwal v. The State, 1990 Delhi Law Times 285, to contend that grant of pre-arrest bail is a discretion and combined effect of all the circumstances is the determining factor for the grant or refusal of such discretion. 13. Mr. Guleria refers to State v. Anil Sharma, (1997) 7 SCC 187, and contend that custodial interrogation of the petitioner in the present case is necessary for the effective investigation of the case. He also relied upon Dukhishyam Benupani v. Arun Kumar Bajoria, (1998) 1 SCC 52 and Enforcement Officer v. Bher Chand Tikaji Bora and another, (1999) 5 SCC 720, to buttress his submission. In Dukhishyam Benupani, an argument was raised on behalf of the suspect that suspect had made himself available for interrogation for several days after an order was passed preventing his arrest. It was observed that such aspect was not material. In Dukhishyam Benupani Division Bench of the High Court made orders injuncting the officials of the Enforcement Department Directorate from arresting the accused and also fix the time and places for his interrogation. In this context it was observed that such kind of supervision or inquiry was "uncalled for". 14. It may be recorded that during the course of hearing, learned Law Officer candidly admitted that no case for offences punishable under Sections 419, 420 and 468 IPC is made out against the accused. It is to be noticed that so far offences punishable under Section 469 is concerned, it is punishable by imprisonment for three years and fine and offence under Section 471 for using forged document as genuine, is punishable for forgery of such documents. 15. It is to be noticed that so far offences punishable under Section 469 is concerned, it is punishable by imprisonment for three years and fine and offence under Section 471 for using forged document as genuine, is punishable for forgery of such documents. 15. A Constitution Bench of the Apex Court in Gurbux Singh Sibbia and others v. The State of Punjab, AIR 1980 SC 1632, considered the ambit and scope of anticipatory bail under Section 438 of the Code of Criminal Procedure. Their Lordships observed that Legislature has conferred a wide discretion on the High Court and the Court of Sessions to grant anticipatory bail but such discretion is to be exercised judicially taking into consideration various unforeseen possibilities. Their Lordships further observed : "....Therefore, even if we were to frame a "Code for the grant of anticipatory bail", which really is the business of the Legislature, it can at best furnish broad guidelines and cannot compel blind adherence. In which to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the Legislature has, in terms express, relegated the decision of that question to the discretion of the Court, by providing that it may grant bail "if it things fit". 16. Taking into consideration the entirety of the circumstances, I am of the view that custodial interrogation of the accused is necessary in the interest of investigation. As observed in Anil Sharma, success in such interrogation eludes if the suspected person knows that he is "protected and insulated by a pre-arrest tyail order during the time he is interrogated". 17. Considering the fact that the petitioner had already been interrogated on three occasions and yet was not arrested and weighing the right of liberty of the petitioner on one hand and the interest of the investigation on the other, I am of the view that the period for custodial interrogation may be fixed. Mr. Guleria, learned Law Officer, on the instructions from the Investigating Officer who is present in the Court, stated that two days would be sufficient for the custodial interrogation of the petitioner. I, therefore, direct : (a) The petitioner will surrender before the Investigating Officer immediately. Mr. Guleria, learned Law Officer, on the instructions from the Investigating Officer who is present in the Court, stated that two days would be sufficient for the custodial interrogation of the petitioner. I, therefore, direct : (a) The petitioner will surrender before the Investigating Officer immediately. The Investigating Officer shall complete the interrogation of the Petitioner within two days. On the completion of the interrogation and recovery of any material object/fact, if any, the petitioner shall be released on bail on his furnishing bonds in the sum of rupees 5,000 with two sureties of like amount to the satisfaction of the Investigating Officer; (b) The petitioner shall make himself available for investigation as and when required by the Investigating Officer; (c) The petitioner shall not influence the witnesses or otherwise tamper with the evidence; (d) The petitioner shall not leave, after his release, Sub Division of Paonta without prior information to the Investigating Officer; (e) It is clarified that if the petitioner mis-uses the bail or violate the conditions imposed upon him, the Investigating Officer shall be at liberty to move this Court for the cancellation of the bail. I draw support for the orders I have made from Abdul Hamit Ansari and others v. State of Maharashtra, 2000 SCC (Cri) 1505. Any observation made herein above, shall not be construed to be any reflection on the merits of the case. Petition allowed.