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2004 DIGILAW 59 (HP)

DAYA NAND SHARMA v. STATE OF H. P.

2004-03-29

M.R.VERMA

body2004
JUDGMENT : M.R. Verma, Judge (Oral)- This application under Section 438 of the Code of Criminal Procedure has been filed by the accused petitioner (hereafter referred to as the accused) for grant of anticipatory bail to him in case FIR No. 38 of 2004, under Section 409, IPC registered at Police Station, Manali. 2. Accusations against the accused are that he was working as Incharge of H.P. Khadi and Village Industries Board, Sate Shop Manali, with effect from 23.10.1992 to 30.8.2003 and was handling the stock, stores, cash etc. of the said shop. During internal audit and physical verification of stock and stores of the said shop shortages worth Rs. 4,95,068/- were detected. The matter was reported to the police and the aforesaid RR thus came into being. During investigation, it has been found mat a sum of Rs. 45.407.80p. has been embezzled in the years 2001 and 2002 and a further sum of Rs. 4,49,363,20p. in the year 2002-2003 and prima facie it is suspected that the amount has been misappropriated by the accused. Investigation in the matter is on. The accused has filed the present application on the grounds that he is absolutely innocent and he was not the only person working at the shop and is willing to join the investigation if so directed. 3. I have heard the learned counsel for the accused and the learned Deputy Advocate General for the respondent-State and have also gone through the police report and the investigation records. 4. It may be pointed out at the very outset that the purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest and disgrace of detention in jail before he may apply for regular all in such cases where be may have been implicated falsely. Therefore, before granting anticipatory bail, the court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. Therefore, before granting anticipatory bail, the court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. The court has to derive the requisite satisfaction from all the material and relevant facts circumstances of the case and it cannot do so merely on the allegations of the petitioner that he has been falsely implicated and that his arrest is intended to disgrace and dishonor him. Thus, the provisions of Section 438 of the Code of Criminal Procedure cannot be applied mechanically. The mere assertion that the petitioner would co-operate during investigation in itself is not a sufficient ground for grant of anticipatory bail. On the contrary the court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. In case it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to grant the anticipatory bail. 5. In Joginder Kumar Vs. State of U.P. and others (1994) 4 SCC 620, the apex court held as follows:- "9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand and individual duties, obligations and responsibilities on the other, of weighing arid balancing the rights, liberties and privileges of the single individuals and those of individuals collectively, of simply deciding what is wanted and where to put the weight and the emphasis of deciding which comes first the criminal or society, the law violator or the law abider of meeting the challenge which Mr. Justice Cardoze so forthrightly met when he wrestled with a similar task of balancing individual rights against societys rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered, in People V. Before justice Cardoze, observed: The question is whether protection for the individual would not be gained at a disproportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Adms case (People V. Adams) strikes a balance between opposing interest We must hold it to be the law until those organs of Government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass. 10. To the some effect is the statement by Judge Learned Hand, if Fired Re: The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society, but so is the effective prosecution of crime, an interest which at times seems to be forgotten. Perfection is impossible, like other human institutions criminal proceedings must be a compromise." 6. In Directorate of Enforcement and another vs. P.V. Prabhakar Rao, (1997) 6 SCC 647, the apex court held as under "8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurbaksh Singh which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitutions Bench in Gurbaksh Singh said thus: (SCC p. 584m para 21) 21......A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power of grant anticipatory bail." 13. In fact, awareness of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power of grant anticipatory bail." 13. When the learned Single Judge himself felt, after going though the records in this case, that the Materials already collected were capable of stretching an accusing finger towards the respondent if was not at all a proper exercise of the discretion be favouring him with an order of anticipatory bail under Section 438 of the Code." 7. In case State V. Anil Sharma (1997) 7 SCC 187 the Honble Court held as under: "6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information’s and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The arguments that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for such an argument can be advanced by all accused in ail criminal cases. The court has to presume that responsible police officers would conduct themselves in a responsible manner arid that these entrusted with the task of disinterring offences would not conduct themselves as offenders." 8. In K.K. Jerath Vs. Union Territory, Chandigarh and others, (1996) 4 SCC 80: "5. We do not wish to enter into any detailed discussion on these legal aspects raised by the learned Counsel for the respondents as this court in the several decisions referred to by the learned Counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of baa, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence. This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition, is therefore, dismissed. 9. It is in view of the above settled position in law that the present petition deserves to be considered. 10. A perusal of the record reveals that the accused was working as the Incharge of the shop in question as is the case of the prosecution and was responsible for the stock, stores, cash etc. of the said shop. The material on record further reveals that the shortages found are because of the misappropriation by the accused. Thus, it does not appear to be a case of false implication intended to harass or humiliate the accused. Keeping in view the magnitude of the offence and the fact that it is yet not known as to how the crime was committed and how the misappropriated amounts were utilized and whether the accused is possessed of any bank balance and if so whether the amount in such accounts is proportionate or disproportionate to the known lawful sources of income of the accused. These aspects of the matte, can be gone into only by custodial interrogation of the accused. Therefore, the accused is not entitled to be released on anticipatory bail. 12. As a result, this application merits dismissal and is accordingly dismissed.