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2003 DIGILAW 1533 (PNJ)

Lehri Singh v. State of Haryana

2003-11-10

M.M.KUMAR

body2003
JUDGMENT M.M. Kumar, J. - This petition filed under Section 438 of the Code of Criminal Procedure, 1973 (for short "the Code") prays for issuance of pre-arrest bail order in case FIR No. 19, dated 3.6.2002 registered under Section 13(i)(e) of the Prevention of Corruption Act, 1988 (for short "the Act"), at Police Station, SVB, Karnal. 2. Briefly, allegations in the FIR are that the accused-petitioner has remained member of Legislative Assembly. It is alleged that from the year 1982 till 1996 he has an income of Rs. 7,87,400.19 whereas his expenditure during the period from 1977 to 1996 is Rs. 13,80,974.00. It is further alleged that the accused-petitioner has acquired property worth Rs. 5,93,566/- more than his known sources of income by illegal means and is alleged to have committed an offence under Section 13(i)(e) of the Act. The FIR was registered after the inquiry had been conducted by the Vigilance Bureau, Haryana through its Deputy Superintendent of Police. Details of properties have also been given. It is also and alleged that the accused-petitioner has acquired the assets by misusing his position as an M.L.A. of the Congress Party. He filed an application before the Additional Sessions Judge, Panchkula which has been dismissed by holding that the accused-petitioner had remained unable to tender any explanation with regard to the property acquired during the period commencing from 1982 to 1996. Feeling aggrieved, the petitioner has approached this Court. 3. Notice of the petition was issued and the counsel for the parties have been heard. 4. Mr. R.S. Cheema, learned counsel for the accused-petitioner has argued that the Inquiry Officer has inflated the figure in respect in respect of M/s Mehra Motors-Petrol Pump, Sector 16, Panchkula whereas the accused-petitioner has, infact, invested a sum of Rs. 4,19,869.81 as is clear from the certificate issued by the Chartered Accountant. Annexure P.1. The figure shown by the Investigating Officer as expenditure on the construction of the building of Petrol Pump in the year 1993 at Panchkula is Rs. 8,71,074.00. Learned counsel has further argued that accused-petitioner has remained M.L.A. for two terms i.e. from 1982 to 1987 and May 1991 to May 1996, whereas the expenditure has been included which is of the years 1987 to 1990 as is clear from item Nos. 2 and 4. 8,71,074.00. Learned counsel has further argued that accused-petitioner has remained M.L.A. for two terms i.e. from 1982 to 1987 and May 1991 to May 1996, whereas the expenditure has been included which is of the years 1987 to 1990 as is clear from item Nos. 2 and 4. Against item No. 2, it has been shown that there was a construction of building in village Radaur during years 1987-90 and an amount of Rs. 3 lacs has been shown as expenditure. In respect of Item No. 4, expenditure shown in the purchase of house No. 1121, Sector 10 Panchkula is Rs. 1,57,000/-. According to the learned counsel, if the amount of over Rs. 4 lacs certified by the Chartered Accountant is taken off from the expenditure reflected for construction of Petrol Pump at Panchkula that itself would narrow down the margin of excess income of about Rs. 5,93,000/- to only over Rs. one lac. If the other two amounts of Rs. 3 lacs and Rs. 1,50,000/-, as stated above, are deducted when the petitioner was not an MLA then no excess amount could be found against accused-petitioner. Learned counsel has also pointed out that the accused-petitioner is an MLA belonging to the Congress Party which is opposed to the party in power i.e. INLD and the case has been registered to achieve an oblique motive of tarnishing his image and reputation of the accused-petitioner who is the President of the Congress Party of the District Congress Committee (Rural), Distt. Yamunanagar. Another argument raised by the learned counsel is that there is a huge delay in recording of FIR as the assets assessed are from 1977 to 1996 and the income assessed is of 1982 to 1996. An additional affidavit was also filed to further explain the aforementioned allegations which have been relied upon by the learned counsel for the petitioner. 5. Mr. G.P.S. Nagra, learned counsel for the State has argued that the FIR has been registered after detailed considerations and holding a thorough inquiry into the assets acquired by the accused-petitioner by apparently indulging in unlawful practices of collecting illegal gratification. According to the learned counsel, a person who was without any bank balance when he became M.L.A. cannot acquire huge assets without misusing his position as such. The disproportionate assets to the income acquired by the accused- petitioner as compared to his income speak for themselves. According to the learned counsel, a person who was without any bank balance when he became M.L.A. cannot acquire huge assets without misusing his position as such. The disproportionate assets to the income acquired by the accused- petitioner as compared to his income speak for themselves. He has also placed reliance on the judgment of the Supreme Court in the case of State/CBI v. Anil Sharma, 1997 SCC (Crl.) 1039 and a judgment of this Court in the case of J.C. Gilhotra v. U.T. Chandigarh, 1999(1) RCR (Crl.) 422. He has submitted that custodial interrogation of the accused-petitioner is essential to ascertain as to how he has come across such a huge property and assets. 6. After hearing the learned counsel for the parties and perusing the records, I am of the considered view that this petition deserves to be allowed. In the case of Gurbaksh Singh Sibbia v. State of Punjab, 1980(2) SCC 565, the Supreme Court has made a detailed reference to 41st report of the Law Commission. It would be appropriate to notice 39.9 para of 41st report of the Law Commissions which reads as under :- "The necessity for granting anticipatory bail arises mainly because sometimes influential persons try to implicate their rivals in false causes for the purpose of disgracing them or for other purposes by getting them detained in jail for some days. In recent times, with the accentuation of political rivalry, this tendency is showing signs of steady increase. Apart from false cases where there are reasonable grounds for holding that a person accused of an offence is not likely to abscond, or otherwise misuse his liberty while on bail, there seems no justification to require him first to submit to custody, remain in person for days and then apply for bail." (emphasis added). 7. The Supreme Court in Gurbaksh Singh Sibbias case (supra) has held that if the allegations forming basis of FIR have been levelled to achieve an oblique motive like lowering the reputation of the accused or tarnishing his image in public eye, then it may be an important consideration for favourable disposal of the case of such an accused under Section 438 of the Code. It has further been observed that if the antecedents of the accused are such that he is unlikely to flee from the process of law or to misuse the same, then a favourable course could be adopted. The observations of the Supreme Court in this regard read as under :- "In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicants presence not being secured at the trial, reasonable apprehension that witnesses will be tampered with and "the larger which the court has to keep in mind while deciding an application for anticipatory bail." 8. When the principles laid down in the judgment of Gurbaksh Singh Sibbias case (supra) are applied to the facts of the present case, it becomes evident that the income of the accused-petitioner has been taken into consideration from the year 1982 to 1996, whereas his expenditure has been considered from the years 1977 to 1996. Moreover, the petitioner was not even M.L.A. from 1987 to April 1991. However, that period has been included by adding an item representing the amount of Rs. 3 lacs i.e. during the years 1987-1990 he is alleged to have constructed a building at village Radaur. Moreover, the petitioner was not even M.L.A. from 1987 to April 1991. However, that period has been included by adding an item representing the amount of Rs. 3 lacs i.e. during the years 1987-1990 he is alleged to have constructed a building at village Radaur. Similarly, House No. 1121, Section 10, Panchkula is alleged to have been purchased in the year 1990. It is true that at this stage no conclusive opinion could be expressed on the income and expenditure shown against the accused-petitioner. However, only a rough estimation can be made in order to arrive at a conclusion as to whether the allegations are influenced by motives other than the one which are to meet the ends of justice. The basic object of criminal law is to segregate criminals from the law abiding society so that such criminals may not infest the society by indulging in criminal activities. The basic object of arrest is that the accused remains available to the Investigating Agency as well as to the trial Court to face trial. However, when the political considerations are suspected to have entered into the registration of a criminal case, then it becomes obligatory to protect the liberty of such an accused and registration of case is proverbial act of killing two birds with one stone. The present case is an illustration of the political ramifications for the accused-petitioner. 9. It is well known that the basic rationale of arrest is two fold, namely, (a) to ensure that fair, impartial and speedy investigation is carried on; AND (b) the presence of the accused is procured during investigation and trial. If in a case the consequences of arrest go far beyond the objects of the arrest then it would be an important consideration which way weigh with the Court. In such a case fair investigation could be ensured by imposing appropriate conditions. Further-more, if the accused violates any of the conditions of the bail order, then the prosecution could always file appropriate application for cancellation of the bail order. In the present case the arrest of the accused-petitioner would result in tarnishing of his public image which could hardly be the object of arrest. Further-more, if the accused violates any of the conditions of the bail order, then the prosecution could always file appropriate application for cancellation of the bail order. In the present case the arrest of the accused-petitioner would result in tarnishing of his public image which could hardly be the object of arrest. Ordinarily in every case the image of a person may be tarnished by his arrest but when public image of a public man is involved, Section 438 of the Code comes to the rescue of such an accused. It is also pertinent to notice that the investigating agency has not shown any eagerness to arrest the accused-petitioner. The FIR was registered on 3.6.2002 i.e. more than 19 months ago and the police has failed to arrest him. Therefore, the instant petition deserves to be allowed. 10. The argument of the learned State Counsel that custodial interrogation is required has not impressed me because in the facts and circumstances of the case, the investigation can effectively be carried by interrogating the accused-petitioner by calling him at the police station as and when required. For the aforementioned purpose, his formal arrest would not be necessary because despite the registration of the case on 3.6.2002, he has not been arrested. The ratio of the judgments in Anil Sharmas case (supra) and J.C. Gilhotras case (supra) are not attracted to the facts of the present case. Therefore, there is no merit in the aforementioned contention. In view of the above, this petition succeeds and the accused-petitioner is granted the benefit of Section 438 of the Code. In case of arrest of the accused-petitioner, the Investigating Officer shall release him on bail by accepting his bail bonds. The accused-petitioner shall appear before the Investigating Officer on 15.11.2003 at 10 a.m. and shall keep on doing so as and when required by him. He shall also not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such a person from deposing the facts to the Court or to any police officer. The petitioner shall also not leave India without previous permission of the Court and shall deposit his passport, if any, with the Investigating Officer. The petitioner shall also not leave India without previous permission of the Court and shall deposit his passport, if any, with the Investigating Officer. However, it is made clear that any observation made in this order shall not be treated as an expression of opinion on the merits of this case. The petition stands disposed of in the above terms. Petition allowed.