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Himachal Pradesh High Court · body

2018 DIGILAW 2276 (HP)

S. Ranganathan v. State of Himachal Pradesh

2018-12-21

SANDEEP SHARMA

body2018
JUDGMENT : Sandeep Sharma, J. By way of present bail petition filed under S.438 CrPC, bail petitioner has approached this court for grant of anticipatory bail in FIR No. 09/2016 dated 03.04.2016 under Ss. 420, 406, 409, 411, 467, 468, 471, 201, 217 and 120-B IPC, Ss. 13(1)c and 13(1)d(ii) of the Prevention of Corruption Act and Ss. 5 and 7 of the Himachal Pradesh Prevention of Specific Corruption Practices Act, registered at Police Station CID Bharari, Shimla, Himachal Pradesh. 2. Sequel to order dated 12.12.2018, Shri Sandeep Dhawal, Superintendent of Police (CID), Shri Ramesh Sharma, Dy.SP (CID) and HC Balbir Singh, Police Station CID, Bharari, Shimla have come present with the record. Mr. Dinesh Thakur, learned Additional Advocate General has also placed on record status report, prepared on the basis of investigation carried out by the investigating agency. Record perused and returned. 3. Mr. Dinesh Thakur, learned Additional Advocate General, on the instructions of the Investigating Officer, who is present in the court, states that pursuant to order dated 12.12.2018, bail petitioner has joined the investigation and is fully cooperating. He further stated that as of today, though the custodial interrogation of the bail petitioner is not required, but he must undertake before this court that as and when his presence is required, he would make himself available for interrogation by the investigating agency. In view of the fair stand adopted by the learned Additional Advocate General, this court sees no impediment in accepting the prayer having been made in the present application. 4. Though, involvement of the bail petitioner in the offence alleged against him is to be ascertained by the learned trial Court on the basis of evidence adduced on record by the investigating agency, but this court having carefully perused the material available on record, sees no reason to allow the bail petitioner to incarcerate in jail, for indefinite period, especially when guilt, if any, of the bail petitioner is yet to be proved in accordance with law. Hon'ble Apex Court and this court have repeatedly held that freedom of an individual is of utmost importance and same can not be curtailed for indefinite period. A person is deemed to be innocent until proven guilty. 5. Recently, the Hon'ble Apex Court in Criminal Appeal No.227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr. Hon'ble Apex Court and this court have repeatedly held that freedom of an individual is of utmost importance and same can not be curtailed for indefinite period. A person is deemed to be innocent until proven guilty. 5. Recently, the Hon'ble Apex Court in Criminal Appeal No.227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr. decided on 6.2.2018 has held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under : “2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.” 6. By now it is well settled that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. It has been repeatedly held by the Hon’ble Apex Court that 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. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012) 1 SCC 49; has been held as under:- “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 can be 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. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted 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 India, 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. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.” 7. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 8. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail : (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 9. In view of above, bail petitioner has carved out a case for grant of bail and as such, present petition is allowed and order dated 12.12.2018 is made absolute subject to petitioner furnishing fresh bail bonds in the sum of Rs.1,00,000/- (Rs. 9. In view of above, bail petitioner has carved out a case for grant of bail and as such, present petition is allowed and order dated 12.12.2018 is made absolute subject to petitioner furnishing fresh bail bonds in the sum of Rs.1,00,000/- (Rs. One Lakh) with two local sureties in the like amount, to the satisfaction of the Investigating Officer, besides the following conditions : (a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) He shall not leave the territory of India without the prior permission of the Court. (e) He shall surrender passport, if any, held by her. 10. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him or fails to join the investigation, the investigating agency shall be free to move this Court for cancellation of the bail. It is also clarified that the instant order has been passed in the facts and circumstances, which are peculiar to the bail petitioner only and as such, same may not be treated as a precedent for other accused. 11. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The petition stands accordingly disposed of.