Research › Search › Judgment

Himachal Pradesh High Court · body

2004 DIGILAW 60 (HP)

DALJEET SINGH v. STATE OF H. P.

2004-03-29

M.R.VERMA

body2004
JUDGMENT M. R. Verma, J. (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. 9 of 2004, under Sections 409,467,468 and 471, IPC, registered at Police Station, Sujanpur Tira. 2. Case of the prosecution against the accused is that the accused remained posted as a Junior Assistant in the Office of Commandant, 2nd IRB w .e .f. 10.4.2001 to 13.6.2003 and was dealing with office accounts. On audit it was found that during this period there was shortage of cash in the sum of Rs.1,88,692/-. It was also found that the accused drew to the firm to which such amounts were due. It has also been found that the charge list has also been tampered with, with a view to facilitate the misappropriation of the amount. On registration of a case against the accused, the investigation in the matter followed and is on. The accused was asked to join the investigation but he failed to do so. The accused has filed the present application on the grounds that he is quite innocent and has wrongly been implicated in a false case and that no useful purpose is going to be served by his arrest. 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 was contended by the learned Counsel for the accused that shortages found in cash had been made good by the accused and the balance amount is being deducted from his salary, therefore, in the facts and circumstances of the case he is entitled to be released on anticipatory bail. On the other hand, the learned Deputy Advocate General has stated that this is a case for custodial interrogation of the accused and more so when he has failed to join investigation despite having been asked to do so. 5. It was 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 being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. 5. It was 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 being detained in jail before he may apply for regular bail in such cases where he 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. The Court has to derive the requisite satisfaction from all the material and relevant facts and circumstances of the case and it cannot be so merely on the allegations of the petitioner that he has been falsely implicated and that his arrest is intended to disgrace and dishonour 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. 6. In Joginder Kumar v. State of U.P. and others 1994(4) SCC 260, 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 and balancing the rights, liberties and privileges of the single individual and those of individuals collectively of simple 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 Cardoza, 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 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 Adams case (People v. Adams) strikes a balance between opposing interests. 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, in Fried 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." 7. In Directorate of Enforcement and another y. 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 at the decision of the Constitution Bench of this Court in Gurbaksh Singh which has settled the position well-high. 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 Sessions, after exercising its judicial discretion wisely. The Constitution 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. 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. When the learned Single Judge himself felt, after going through 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 by favouring him with an order of anticipatory bail under Section 438 of the Code." 8. In case State v. Anil Sharma, 1997(7) SCC 187 the Honble Supreme 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 and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. The arguments that the custodial interrogation is fraught with danger of the person being subjected to third-degree methods need out be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The court has to presume that responsible police officers would conduct themselves in a responsible manner and that these entrusted with the task of disinterring offences would not conduct themselves as offenders." 9. In K.K. Jerath v. Union Territory, Chandigarh and others, 1998(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 bail, 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." 10. It is in view of the above settled position in law that the present petition deserves to be considered. 11. A perusal of the record prima facie reveals the involvement of the accused in the commission of the offences complained against him. The contention that the misappropriated amount has been deposited by the accused is not wholly true as out of the embezzled amount he has deposited only a sum of Rs.1,00,000/-. However, this deposit by the accused prima facie strengthens the allegations of misappropriation of the amount by him rather that exculpating him from the crime. Cases of misappropriation and forgery with a view to commit the offences are of serious and complicated nature inasmuch as it has to be detected as to how the misappropriated amount has been used, whether it has been deposited or kept in any bank account and on checking of the bank accounts etc. of the alleged culprit it has to be found whether he has amassed wealth disproportionate to his known sources of income or not. For such purposes custodial interrogation is required in the interest of administration of criminal justice. The anticipatory bail evidently is not meant for the accused who are shown prima facie having misappropriated the public money. It is mereso in the present case because the original road certificates and cash statements are with the accused himself an d are yet to be recovered from him and despite having been called upon to join investigation he has failed to join the investigation. In such circumstances, the accused is not entitled to be released on anticipatory bail. 12. As a result, this application merits dismissal and is accordingly dismissed.