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2013 DIGILAW 603 (PNJ)

Anil Kumar v. State of Punjab

2013-05-08

Paramjeet Singh

body2013
JUDGMENT Mr. Paramjeet Singh, J. (Oral):- This order shall dispose of Crl. Misc. No. M-38118 of 2012, M-3345 of 2013, M-4860 of 2013, M-5640 of 2013, M-6423 of 2013, M-7607 of 2013, M-7608 of 2013 and M-7791 of 2013 as they arise from the same FIR. 2. The petitioners in the abovesaid petitions have approached this Court under Section 439 Cr.P.C. for grant of regular bail in a case arising out of FIR No.04 dated 21.7.2012 registered under Sections 409/420/467/468/471/120-B IPC and Sections 13(1)(d)/13(2) of the Prevention of Corruption Act at Police Station Vigilance Bureau, Bathinda, District Bathinda, Punjab, wherein the challan and supplementary challans have already been filed. 3. The brief facts, as mentioned in the FIR, are to the effect that Vigilance Bureau, Bathinda, conducted an Inquiry dated 2.5.2012 against Joginder Singh XEN. During inquiry, it was found that Joginder Singh XEN and Satpal Bansal, Superintendent, who has since retired, had prepared a forged LOC vide letter No.1024 dated 14.6.2010 for Rupees two crore twenty five lacs and LOC letter No.1124 dated 3.8.2012 for Rupees two hundred eighty one lacs in connivance with each other and purported to have been issued by the Chief Engineer, PWD, Patiala. In fact, it had not been issued by the Chief Engineer, PWD, Patiala. Joginder Singh, XEN, in connivance with Treasury Officer, Mansa, has obtained Rupees four crore seventy five lacs after releasing the same from the treasury. In addition to this, forged and fabricated bills and letters were prepared and an amount of Rs. 46,26,871/- was misappropriated. By doing the alleged acts, accused Joginder Singh, XEN, PWD (B&R), Mansa, and Satpal Bansal, retired Superintendent, had committed offence punishable under Sections 409/420/467/468/471/120-B IPC read with Sections 13(1)/13(2) of the Prevention of Corruption Act. 4. During investigation of the case other persons, namely, contractors Paras Ram, Basant Singh, Anil Kumar and Jaswinder Singh etc. were nominated as accused. 5. The investigation in this case has been completed and challan has been presented and some of the subsequently nominated accused are yet to be arrested. 6. Heard. 7. Learned counsel for the petitioners contended that petitioners, namely, Anil Kumar, Jaswinder Singh Thekedar, Joginder Singh Sidhu, Satpal Bansal, Khushwant Singh Kahrbanda, Basant Singh, Paras Ram and Sarabjit Singh are behind bars since 19.9.2012, 19.9.2012, 25.7.2012, 19.9.2012, 31.1.2013, 19.9.2012, 19.9.2012 and 17.9.2012, respectively. Different roles have been attributed to the petitioners in the case. 6. Heard. 7. Learned counsel for the petitioners contended that petitioners, namely, Anil Kumar, Jaswinder Singh Thekedar, Joginder Singh Sidhu, Satpal Bansal, Khushwant Singh Kahrbanda, Basant Singh, Paras Ram and Sarabjit Singh are behind bars since 19.9.2012, 19.9.2012, 25.7.2012, 19.9.2012, 31.1.2013, 19.9.2012, 19.9.2012 and 17.9.2012, respectively. Different roles have been attributed to the petitioners in the case. Learned counsel for the petitioners vehemently contended that although there are allegations against the petitioners of being involved in economic offence of huge magnitude, we cannot lose sight of the fact that investigation agency has completed the investigation and chargesheets have been submitted and even the supplementary charge-sheets have been submitted. Petitioners are in custody since different dates ranging from 25.7.2012 to 19.9.2012. As such they are in custody approximately for seven months. They are not required for further investigation. To substantiate their contentions, learned counsel for the petitioners further contended that pre-trial incarceration is not permissible in view of the provisions of the Constitution of India and undertrial cannot be kept in custody for an indefinite period. If that is done then that will amount to an harsher punishment in spite of the fact that guilt is yet to be pronounced. It is argued by the learned counsel for the petitioners that ‘bail but not the jail’ is the basic principle. It is further argued that there is no likelihood of the accused fleeing from the process of Court and tampering with the prosecution evidence. The entire case is based on the documents. 8. Learned counsel for the petitioners have relied upon Dipak Shubhashchandra Mehta vs. C.B.I. and another, [2012(2) Law Herald (SC) 1362] : 2012(1) RCR (Criminal) 870 (SC), Sanjay Chandra vs. CBI, [2012(1) Law Herald (SC) 113] : 2011(4) RCR (Criminal) 898 (SC), Rajinder Kumar vs. State of Haryana, [2012(1) Law Herald (P&H) 935] : 2012(1) RCR (Criminal) 481 (P&H) and Desh Raj vs. CBI, [2013(1) Law Herald (P&H) 329] : 2013(1) RCR (Criminal) 346 (P&H). 9. Learned counsel for the State contended that petitioners are involved in economic offence of high magnitude. There is a big scam. The Government officials in connivance with the contractors have caused a loss of more than Rs. 4.75 crores to the State exchequer. They have prepared forged and fabricated documents, vouchers and payment bills. As such they should not be released on bail as they may tamper with the evidence. 10. There is a big scam. The Government officials in connivance with the contractors have caused a loss of more than Rs. 4.75 crores to the State exchequer. They have prepared forged and fabricated documents, vouchers and payment bills. As such they should not be released on bail as they may tamper with the evidence. 10. I have considered the rival contentions raised by the learned counsel for the parties and perused the judgments cited at bar by the learned counsel for the petitioners. 11. The latest judgment cited by the learned counsel for the petitioners is of the Hon’ble Supreme Court in Dipak Shubhashchandra Mehta (supra) wherein the entire law has been discussed. The Hon’ble Supreme Court in para No.18 in Dipak Shubhashchandra Mehta’s case (supra) has held as under: - “18. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted, particularly, where the accused is charged of having committed a serious offence. The Court granting bail has to consider, among other circumstances, the factors such as a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and; c) prima facie satisfaction of the court in support of the charge. In addition to the same, the Court while considering a petition for grant of bail in a non-bailable offence apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted. Considering the present scenario and there is no possibility of commencement of trial in the near future and also of the fact that the appellant is in custody from 31.03.2010, except the period of interim bail, i.e. from 15.09.2011 to 30.11.2011, we hold that it is not a fit case to fix any outer limit taking note of the materials collected by the prosecution. This Court has repeatedly held that when the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. As posed in the Sanjay Chandra’s case (supra) we are also asking the same question i.e. whether the speedy trial is possible in the present case for the reasons mentioned above.” 12. Further, the Hon’ble Supreme Court in the case of Sanjay Chandra (supra) has held as under: - “15. In the instant case, as we have already noticed that the “pointing finger of accusation” against the appellants is ‘the seriousness of the charge’. The offences alleged are economic offences which has resulted in loss to the State exchequer. Though, they contend that there is possibility of the appellants tampering witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Indian Penal Code and Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the Constitutional Rights but rather “recalibration of the scales of justice.” The provisions of Cr.P.C. confer discretionary jurisdiction on Criminal Courts to grant bail to accused pending trial or in appeal against convictions, since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar Vs. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognized, then it may lead to chaotic situation and would jeopardize the personal liberty of an individual. This Court, in Kalyan Chandra Sarkar Vs. Rajesh Ranjan- (2005) 2 SCC 42 , observed that “under the criminal laws of this country, a person accused of offences which are non-bailable, is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 of the Constitution, since the same is authorized by law. But even persons accused of nonbailable offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so.” 13. In Sanjay Chandra’s case (supra) also the Hon’ble Supreme Court has considered the entire law on the subject. 14. I am conscious of the fact that serious allegations of connivance and causing financial loss to the State exchequer have been levelled against the petitioners. There are also allegations of dishonesty, forgery, cheating and charges under various Sections of IPC and Prevention of Corruption Act have been levelled. However, if the petitioners are allowed to be kept in judicial custody for indefinite period then Article 21 of the Constitution is violated. It is the fundamental right of every person in judicial custody for speedy trial. In the facts of the present case, it is to be seen whether keeping the petitioners in custody is justified specially when some of the persons who have been nominated during investigation are yet to be arrested and challan against them is to be presented on their joining investigation. 15. Second argument is regarding tampering with the evidence. I have considered this contention also. The entire case is based on the documentary evidence i.e. forged vouchers, bills and thereafter the payment to various contractors and others in connivance with the Government officials. This is not a case based on the oral testimony of individuals. 15. Second argument is regarding tampering with the evidence. I have considered this contention also. The entire case is based on the documentary evidence i.e. forged vouchers, bills and thereafter the payment to various contractors and others in connivance with the Government officials. This is not a case based on the oral testimony of individuals. No doubt the allegations against the petitioners are serious in terms of the alleged huge loss caused to the State exchequer, that by itself should not deter this Court from enlarging the accused on bail specially when they are already behind bars for about seven or more months. I do not see any good reason to continue the judicial custody of the petitioners that too after completion of investigation and submission of charge-sheets/supplementary charge-sheets. The conclusion of the trial will take long time and their presence in custody may not be necessary for further investigation. 16. In view of this, I am of the view that petitioners are entitled to grant of bail pending trial on stringent conditions in order to allay the apprehension of the investigating agency. It is not necessary to canvass and go into the details of various other issues canvassed by learned counsel for the parties and the cases relied upon by learned counsel for the petitioners in support of their contentions. I have not expressed any opinion on the merit of the case. 17. In the result, petitions are allowed, Petitioners be admitted to bail on their executing bail bonds with solvent sureties each in the sum of Rs. 10.00 lac to the satisfaction of trial Court, Bathinda, on the following conditions: - a) The petitioners shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the Court or to any other authority. b) They shall remain present before the Court on the dates fixed for hearing of the case. If they want to remain absent, then they shall take prior permission of the court and in case of unavoidable circumstances for remaining absent, they shall immediately give intimation to the appropriate court and also to the State Vigilance Bureau and request that they may be permitted to be present through the counsel. c) They will not dispute their identity as the accused in the case. c) They will not dispute their identity as the accused in the case. d) They shall surrender their passport, if any (if not already surrendered), and in case, they are not a holder of the same, they shall swear to an affidavit. If they have already surrendered before the trial Court, that fact should also be supported by an affidavit. e) I reserve liberty to the State Vigilance Bureau to make an appropriate application for modification/recalling this order, if for any reason, the petitioners violate any of the conditions imposed by this Court. ---------0.B.S.0------------