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2017 DIGILAW 288 (HP)

Amit Jha v. State of Himachal Pradesh

2017-04-01

SANJAY KAROL

body2017
JUDGMENT : Sanjay Karol, J. 1. In relation to FIR No.41/2015, dated 2.3.2015, registered at Police Station, Dehra, District Kangra, Himachal Pradesh, accused-petitioner stands charged for having committed offences, punishable under Sections 364A, 420, 342, read with Section 120B of the Indian Penal Code, and Section 66-D of the IT Act, 2000. Such FIR came to be registered on the basis of complaint made by Arvind Singh that on the pretext Whether reporters of the local papers may be allowed to see the judgment? of getting employment in a foreign country, present petitioner Amit Jha along with his co-accused Tarsem Singh, made him travel to Delhi, from where he was taken to Bagdogra and forced to part with a sum of Rs. 22 lakhs. Not only he stood duped, as the promises turned out to be false, but at Bagdogra, kept in confinement and physically assaulted. 2. Accused-petitioner seeks bail on the grounds – (a) witnesses so far examined by the prosecution do not establish the charged offences; (b) has been in custody for more than a year; (c) stands falsely implicated; (d) investigation is complete and nothing else is required to be recovered; (e) he is a permanent resident of Himachal Pradesh, and that (f) is a student and has a bright career. In support, learned counsel for the petitioner seeks reliance upon the following observations made by the apex Court in Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40 : “21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, 'necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.” “25. 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 the 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, is 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." 3. Significantly, in Sanjay Chandra (supra), the Court in Paras-39 & 40 itself has clarified that “the grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required.” (Emphasis supplied) 4. It further clarified that while granting bail, both, seriousness of the charge and severity of punishment, has to be kept in mind. 5. Further having gone through the said Report, one only finds the following factors, to have weighed with the Court in allowing the application for grant of bail – (a) the extent of sentence of imprisonment, which the accused, if found guilty could have been asked to undergo, (b) possibility of the accused remaining in detention for a period more than the one for which they could have been convicted, (c) large number of accused persons, (d) possibility of procrastinated trial, more so on account of voluminous record, and (e) the investigation being complete. 6. 6. One finds the principle of law, in a case of grant of bail pertaining to non-bailable offence, to be reiterated by the apex Court in a more recent judgment rendered in Vinod Bhandari v. State of Madhya Pradesh, (2015) 11 SCC 502 , which can be crystallized thus – (a) lawful detention is not violative of Article 21 of Constitution of India, (b) detention is preventive and not punitive, (c) at a pre-conviction stage, there is presumption of innocence, (d) the object of keeping a person in custody is to ensure availability for facing trial and receive sentence, if any, which may be passed eventually, (e) seriousness of the allegations or availability of material in support thereof, (f) delay in commencement and conclusion of trial, (g) if trial is not likely to be concluded within a reasonable time, then accused is not to be kept in custody for indefinite period, (h) failure on the part of prosecution to prima facie establish the case, (i) even where prosecution has been able to prima facie establish its case, for reasons to be recorded, Court can still grant bail, (j) rejection of an application would not preclude the accused from filing a subsequent application for grant of bail. But however, circumstances prevalent are required to be examined, (k) danger of the accused absconding or fleeing away, after release on bail, (l) character, behavior, means, position and standing of the accused, (m) likelihood of the offence being repeated, (n) reasonable apprehension of the witnesses being tampered with, and, amongst others, (o) danger of justice being thwarted by grant of bail. 7. Record reveals that in the last five months, prosecution has examined 16 witnesses and the next date for examination of the remaining witnesses is fixed for 5.4.2017. In the month of December, 2016, similar application came to be filed, which was with drawn with liberty to file before the trial Court. Vide order dated 17.2.2017, so annexed with the instant application, such bail application stands rejected. 8. Having perused the record, Court is of the considered view that the instant bail application only merits rejects. 9. Now, in the instant case, it is no doubt true that investigation is complete and most of the prosecution witnesses stand examined. To the credit of learned counsel for the petitioner, one finds statements of witnesses to have been placed on record. 9. Now, in the instant case, it is no doubt true that investigation is complete and most of the prosecution witnesses stand examined. To the credit of learned counsel for the petitioner, one finds statements of witnesses to have been placed on record. Bare perusal of record does not reveal that “ex-facie”, no case is made out against the accused. One cannot forget that allegedly, complainant parted with valuable security of huge amount, and that too, on the pretext of being given employment in a foreign country. Allegedly, he was taken to Bagdogra and kept in confinement. He was forced to call his family, asking them to transfer the money. He was beaten up. Nature of allegations is quite severe and serious. The petitioner has wrongly mentioned that he is a permanent resident of Himachal Pradesh (Para-7 of the application). In fact, as is evident from the memo of his earlier bail petition, he is actually a resident of State of Orissa. How and in what manner conspiracy was hatched by the accused persons is a matter of trial. 10. According to Mr. R.S. Verma, learned Additional Advocate General, a bigger racket is being run in the State, which needs to be further investigated. Well, all this is for the trial Court to examine, but however, keeping in view the aforesaid principles of law laid down by the apex Court, this Court certainly does not find the petitioner to have made out a case for grant of bail. To the credit of the trial Court, witnesses are being examined, virtually on day-to-day basis. Maximum sentence, which can be imposed, is imprisonment for life. There is nothing on record to establish that petitioner has got roots in the society, either in this State or in his home State. Well, record does not reveal such fact. It is not that the allegations are vague and unfounded. Co-accused has got roots in a foreign country, i.e. Nepal, and according to the prosecution there is every likelihood of the accused fleeing away from the jurisdiction of this Court, which fact stands amplified on record. Though the case came to be registered in the year 2014, but only with great effort, petitioner was traced and brought back from his native place in Orissa, that too after a period of almost two years. 11. Though the case came to be registered in the year 2014, but only with great effort, petitioner was traced and brought back from his native place in Orissa, that too after a period of almost two years. 11. In any event, trial is likely to finish in near future and as such his further detention, preventive in nature, is only warranted, in the interest of justice and by no means can be said to be impinging upon his personal liberty, for his detention is purely in accordance with the procedure established by law and in public interest. Allegations are extremely serious. 12. Hence, for all the aforesaid reasons, present application is dismissed. 13. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above. Application stands disposed of, so also pending application, if any.