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2015 DIGILAW 5 (JK)

Gurbachan Singh Dutta v. State

2015-01-03

JANAK RAJ KOTWAL

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JUDGMENT : Janak Raj Kotwal, J.:- 1. This is petitioner's subsequent application for his release on Bail after filing of the charge sheet for offences under Sections 406, 409, 420, 468, 471 & 120-B RPC in FIR No. 302/2012 of P.S. Gandhi Nagar against him and three others by the Crime Branch Police, Jammu. The earlier application has been dismissed by the learned trial Court. Prosecution case, briefly, is that the petitioner and the co-accused have floated a company, namely, M/S. Dutta Financers India Pvt. Limited. Petitioner's son, accused, Harpal Singh Dutta, is its Managing Director, whereas the petitioner, his wife, accused, Bhajan Kour and accused, Gurdeep Singh are its Directors. The accused obtained huge deposits to the tune of 20 crores rupees from a number of depositors with a promise of paying them double the amount in five years and giving 10% interest on the deposited amount. The accused, however, hatched a criminal conspiracy and utilized the deposited amount for purchasing lands, godown and a fleet of oil tankers. One of the depositors, namely, S. Joginder Singh lodged a written information at Police Station, Gandhi Nagar, Jammu alleging that about one thousand depositors of Jammu, Kathua, Samba, Poonch, Baramulla and Srinagar districts had deposited their hard earned money over the years with the Finance Company floated by the accused and when in the month of March, 2011 some of the depositors approached the Company for payment of interest to them and some of them for payment of deposited amount for their personal necessity, the directors and other officials of the company refused to make any payment. After registration of the FIR and transfer of investigation to the Crime Branch vide PHQ Order No. 52 dated 02.01.2013, the Investigating Officer seized the record and on completion of investigation found commission of above mentioned offences by the accused. 2. In the course of investigation, petitioner was arrested on 22.05.2013 and he is now in judicial custody. Accused, Bhajan Kour, was granted anticipatory bail by this Court. Accused, Harpal Singh Dutta and Gurdeep Singh are said to have absconded and could not be arrested. Accused, Harpal Singh Dutta, reportedly moved to USA. 2. In the course of investigation, petitioner was arrested on 22.05.2013 and he is now in judicial custody. Accused, Bhajan Kour, was granted anticipatory bail by this Court. Accused, Harpal Singh Dutta and Gurdeep Singh are said to have absconded and could not be arrested. Accused, Harpal Singh Dutta, reportedly moved to USA. The Crime Branch, therefore, filed charge sheet for aforementioned offences in the court against the four accused with a prayer for proceeding under Section 512 Cr.P.C. against the absconding accused and reserving its right to file supplementary charge sheet, after conducting further investigation in the case. 3. In seeking his release on bail, petitioner's contention is that the Finance Company had been floated by his son and the charge sheet filed by the Crime Branch does not show any allegation of commission of offence by the petitioner but for the fact that he is the father of the Managing Director. It is contended that the petitioner has not committed nor participated in commission of any offence. There had been no criminal intention on the part of the petitioner at any stage in duping the investors. Besides merits of the case, petitioner seeks his release on the basis of his old age and ailing health. It is contended that petitioner is 77 and is not keeping good health and that his detention in judicial custody is not required for any reason, whatsoever. 4. State has opposed petitioner's release on bail. It is contended that the petitioner and the other accused have committed big fraud with poor and illiterate persons and committed heinous offences punishable severely under different sections of RPC. There is apprehension that after release of the petitioner, entire family will leave the country for USA. 5. Mr. Sunil Sethi, learned Senior Advocate, appearing for the petitioner, submitted that no culpability can be attributed to the petitioner as he allegedly had been a Director of the Finance Company and not its Managing Director. He had no role in securing deposits or making the payment to the depositors. Mr. Sethi submitted further that investigation of the case, and in any case as far as involvement of the petitioner is concerned, is complete and there is no reason for detaining the petitioner in custody any longer. He had no role in securing deposits or making the payment to the depositors. Mr. Sethi submitted further that investigation of the case, and in any case as far as involvement of the petitioner is concerned, is complete and there is no reason for detaining the petitioner in custody any longer. Refusing bail and extending detention of the petitioner would mean sentencing and punishing him even before his trial which is not permissible under law. Mr. Sethi further submitted that the petitioner is an old and ailing person and his desertion is breach of his fundamental right of liberty and also his right to life as he would be deprived of basic human necessities of an old and ailing person. Mr. Sethi submitted further that apprehension that petitioner and other members of the family may leave the country and go to USA is without any basis. Mr. Sethi cited the factors to be considered in dealing with prayers for bail and submitted that none of these factors weigh against petitioner's release on bail. 6. Per contra, Mr. Mohd. Saleem Malik, learned Deputy Advocate General, appearing for the State assisted by Mr. S.S. Lehar, learned Senior Advocate, appearing for the informant, vehemently opposed the bail. They submitted that petitioner and other members of his family have duped poor depositors who comprise of retired army personnel and government servants, wives of deceased army personnel, farmers, small businessmen and the like of their hard earned money saved by them over the years. The poor depositors have been put to a state of depression and distress. Mr. Lehar sought to portray a scenario that one son of the petitioner, who designated himself as Managing Director of the Company, has left the country and settled in America. The other son, namely, Amarjeet Singh, who was beneficiary of the duped money, has been exonerated by the investigating agency during investigation and settled his business in Nepal. The mother, who was made Director of the company, got released on anticipatory bail for being a woman, whereas the petitioner seeks his release on the basis of his old age and that may be the end of the matter to utter dismay of the poor depositors. Mr. Lehar even submitted that the petitioner had been instrumental in fleeing of his son, Harpal Singh, out of the country and did not even furnish his address to the investigating officer. Mr. Mr. Lehar even submitted that the petitioner had been instrumental in fleeing of his son, Harpal Singh, out of the country and did not even furnish his address to the investigating officer. Mr. Sethi, learned Senior Advocate, in his reply arguments submitted that provision of bail cannot be used as pressure tactics and one accused cannot be refused bail for the reason that another accused, who is member of his family, has absconded. 7. Administration of criminal justice provides for arrest of a person involved in commission of a non-bailable offence and leaves it to the discretion of a competent court to grant him bail during investigation or trial. The court has to exercise its discretionary jurisdiction of bail in a judicious manner and not as a matter of routine. A balance is to be created between right to individual liberty of the accused on one hand and general public interest and society's loath against crime on the other. I may refer to and quote what the Supreme Court has observed in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 : "3. The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty." 8. The law in regard to grant of bail is now well settled. While granting bail, court has to keep in mind and accord consideration to the nature of accusation, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, reasonable possibility of securing presence of the accused at the trial, reasonable apprehension of witnesses being tampered with, the larger interest of public/State and other factors of similar nature. Consideration in any of these factors may weigh against the accused and bail can be refused on that score. 9. It would admit of no doubt that accusation against the petitioner and the co-accused are of serious nature and the offences for which they are sought to be tried entail severe punishment. To say briefly, offence under Section 409 RPC carries the maximum punishment of imprisonment for life. Punishment for offence under Section 468 RPC may extend to 7 years. 10. Petitioner and the co-accused, who comprise of his family members, are alleged to have duped poor depositors of their hard earned money deposited by them with the Finance Company floated by the accused over the years. It is seen that in seeking his release on bail, the petitioner in his application has denied neither the floating of the Finance Company by the accused nor his being one of the Directors of the said Company. Deposits with the company having been made by a number of depositors and the allegation that the deposited amount has not been returned to the depositors have not been denied. He has not dared to say the least that money of the depositors is safe. Petitioner's contention that he is not involved in commission of any offence, therefore, does not carry much substance. 11. The nature of accusation and severity of punishment are the factors which weigh against the petitioner in determination of his right to be released on bail. That apart, it cannot be overlooked lightly that the son of the petitioner, who happened to be the Managing Director of the Company, has absconded and reportedly he has moved to USA. Apprehension of petitioner jumping over the bail in such a situation too cannot be ruled out. That apart and above all, in the peculiar circumstances of this case, petitioner's release on bail would be against general public interest, given that it is an economic offence in which thousands of depositors belonging to the cross section of society have allegedly been duped of their hard earned money and the Managing Director and one of the Directors have already absconded. Bail in such a case cannot be granted even on health grounds because a person having remained involved in a business which allegedly led to duping of a number of poor persons cannot suddenly be heard pleading his old age or poor health to escape the legal consequences of the situation so arising. Old age or poor health in itself is no ground for release on bail unless there is material to suggest that detention may involve a risk to life. 12. For the aforementioned, petitioner cannot be held entitled to bail at this stage. Prayer for bail is, therefore, rejected and application dismissed. Dismissal of application, however, shall not be treated as bar against filing fresh application before the competent court at any changed situation hereafter. Disposed of.