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2018 DIGILAW 583 (HP)

Mustfa v. State Of Himachal Pradesh

2018-04-09

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J —Bail petitioner, namely Mustfa, who is behind the bars since 12.2.2018, has approached this Court for grant of regular bail in case FIR No. 210 of 2017, dated 22.09.2017, under Sections 420, 406, 120-B of Indian Penal Code, registered at Police Station, Sadar, District Bilaspur, Himachal Pradesh. 2. Sequel to order dated 23.03.2018, ASI Raj Kumar, police Station, Sadar, District Bilaspur, has come present in Court alongwith the record of the case. He has also filed his personal affidavit. 3. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the investigating agency, perusal whereof, suggest that complainant, namely Smt. Sunita Kumari, approached learned Judicial Magistrate, 1st Class, Bilaspur by way of an application filed under section 156(3) Cr.P.C., alleging therein that person, namely Gulshan Khan on the pretext of sending his son to Japan made her to deposit an amount of Rs. 6,00, 000/- in account No.106118901, in the name Mustfa, the present bail petitioner at Branch Tirur (Thazepal) and assured that he will get the Work Visa for his son through post after 3-4 days from the date of depositing the aforesaid amount. Complainant, who allegedly raised loan from Shri Ram Finance Company, transferred Rs.6, 00, 000/- in the bank account of the present bail petitioner, detailed hereinabove, but fact remains that son of the complainant was never provided Work Visa. The complainant repeatedly requested Gulshan Khan either to refund money or get the visa as assured by him, but since nothing was done, complainant was compelled to lodge the complaint, as taken note hereinabove. Learned Judicial Magistrate 1st Class, Bilaspur taking note of the averments contained in the application preferred under section 156(3) Cr.P.C., directed the SHO, Bilaspur to carry out investigation in the case. 4. As per investigation, co-accused namely Gulshan Khan, Gulshan Begam and Danish Khan, facilitated the aforesaid transaction in the account of the present bail petitioner. Person namely Gulshan Khan is already behind the bars in connection with some other case at Nahan. 4. As per investigation, co-accused namely Gulshan Khan, Gulshan Begam and Danish Khan, facilitated the aforesaid transaction in the account of the present bail petitioner. Person namely Gulshan Khan is already behind the bars in connection with some other case at Nahan. It may be noticed here that Gulshan Khan had also made such false promises to the persons living at Nahan and Paonta Sahib and during investigation in that case it had emerged that he had taken substantial amount, which was subsequently transferred in the bank account of her daughter Alisha, who resides at Dubai. This Court, while considering his bail petition, had granted him six months time to refund the money allegedly taken by them from the persons living at Nahan and Paonta Sahib, but fact remains that he failed to return the money and at present he is behind the bars. 5. As per the investigation conducted by the police, an amount of Rs. 6,00, 000/- was deposited in the bank account of the present bail petitioner Mustfa, who during investigation claimed that he is constructing the house of co-accused namely Jafar Shah, who in turn deposited an amount of Rs. 6,00, 000/- in his bank account for the propose of construction. Investigation further reveals that present bail petitioner and co-accused Faijal Babu, Jafar Shah and Alisha Pathan, who resides in Dubai were in constant touch with each other. Person namely Faijal Babu though failed to appear himself before the investigating agency, but on 13.2.2018, he telephonically contacted ASI Raj Kumar, i.e. Investigating Officer and offered him bribe and stated that he will pay money as much as required for the closure of the case. Since, this fact was brought to the notice of the Court by status report, this Court directed Investigating Officer to file his personal affidavit, who in terms of order dated 20.3.2018 has filed his personal affidavit, reiterating that he was offered money by accused Faijal Babu to close the case. Though, other persons namely Gulshan Khan, Gulshan Begam, Danish Khan have also been named in the FIR, but as per investigation, there appears to be no direct role played by them as far as deposition of Rs. 6,00, 000/- in the account of Mustfa, is concerned. It appears that persons named hereinabove only persuaded the complainant to deposit this amount in the bank account of Mustfa. 6,00, 000/- in the account of Mustfa, is concerned. It appears that persons named hereinabove only persuaded the complainant to deposit this amount in the bank account of Mustfa. Though, investigation reveals that persons sitting at Dubai namely Farveez Nizam and Alisha had telephonic conversation with the complainant Sunita Kumari and Ankit, but since they are resides at Dubai, police was unable to investigate them. 6. Mr. T.S. Chauhan, learned counsel representing the petitioner namely Mustfa, while inviting attention of this Court to the record/status report, contended that at no point of time present bail petitioner was in contact with the complainant Sunita or Ankit, rather amount, if any, in his account was deposited by Jafar Shah for the construction of his house. He further contended that it has come in the investigation that bail petitioner namely Mustfa is a care taker in the house of accused Jafar Shah. He further contended that there is nothing in the investigation, from where it can be inferred that present bail petitioner made complainant''s to deposit amount in his bank account. Rather, he never remained in touch with the complainant or other co-accused named in the FIR. He further stated that otherwise also during the pendency of present bail petition, entire amount stands repaid to the complainant, as has been stated by the complainant before this Court in Cr.MMO No.95 of 2018. 7. Mr. Dinesh Thakur, learned Additional Advocate General, while opposing the aforesaid prayer having been made by learned counsel for the bail petitioner, contended that keeping in view the gravity of offence allegedly committed by the bail petitioner, he does not deserve any leniency, rather needs to be dealt with severely. While admitting factum with regard to repayment of an amount of Rs. 8,00, 000/-, Mr. Thakur, contended that mere repayment will not absolve bail petitioner from the offences committed by him. He further contended that investigation in the case is yet to be completed because persons sitting at Dubai are not coming forward despite issuance of look out notice and as such, enlargement of bail petitioner, named hereinabove, at this stage, would not be in the interest of justice, rather in the event of petitioner''s being enlarged on bail, he will not only hamper the investigation, rather there is every likelihood of his fleeing from the justice. Lastly, learned Additional Advocate General contended that since the bail petitioner Mustfa hails from the State of Kerala, it may be difficult to procure his presence during investigation or trial in the event of petitioner''s being enlarged on bail. 8. I have heard learned counsel representing the parties and carefully gone through the record made available. 9. Close scrutiny of the record/status report, certainly persuade this Court to agree with the contention of Mr. T.S. Chuhan, learned counsel representing the bail petitioner, namely Mustfa that there is no evidence against the present bail petitioner save and except that a sum of Rs. 6,00, 000/- was deposited in his bank account. It is not the case of the complainant that she deposited amount in the bank account, detailed hereinabove, on the asking of bail petitioner Mustfa, rather they were asked to deposit amount in the bank account, referred hereinabove, on the asking of co-accused Gulshan Khan, who is behinds the bar. Similarly, there is nothing on the record suggestive of the fact that bail petitioner had been indulging in such activity in past also. Rather, investigation reveals that bail petitioner Mustafa is working as care taker in the house of Jafar Shah, who resides at Dubai. No doubt, perusal of personal affidavit filed by the investigating officer, suggests that co-accused namely Faizal Babu tried to influence the investigation by offering bribe to the Investigating Officer, but in the given facts and circumstances that may not be sufficient to conclude that money was offered to get the present bail petitioner bailed out, rather, affidavit filed by the Investigating Officer, suggests that money was offered to close the case, in which admittedly Faizal Babu is a co-accused. 10. Leaving everything aside, entire money stands received by the complainant, as has been fairly admitted by the learned Additional Advocate General. Otherwise also, at this stage it may be noticed that present bail petitioner by way of Cr.MMO No.95 of 2018 has approached this Court, with a prayer to quash the FIR on the ground that the parties have resolved to settle their matter amicably and that matter came to be listed before this Court on 20th March, 2018, on which date, the complainant Sunita Kumari made a statement on oath before this Court that she has received an amount of Rs. 8 lac from the petitioner towards full and final settlement and she has no objection in case FIR No.210 of 2017, dated 22.09.2017, under Sections 420, 406 and 120-B of IPC, registered at Police Station Sadar, District Bilaspur, H.P., is quashed and set-aside. Though aforesaid matter is pending for consideration before this Court, but fact remains that the amount deposited by the complainant''s stands repaid to her and as such, no fruitful purpose would be served in case the present bail petitioner, who is behind the bars since 12.2.2018 is allowed to incarcerate in jail for indefinite period. Another apprehension expressed by learned Additional Advocate General with regard to possibility of petitioner''s absconding from the trial can be met by putting the bail petitioner to stringent conditions, as has been fairly submitted by the learned counsel representing the bail petitioner. 11. This Court cannot loose the sight of the fact that guilt, if any, of bail petitioner is yet to be proved, in accordance with law and as such, it may not be in the interest of justice to deny him bail at this stage, especially when entire amount stands received by the complainant. By now it is well settled law that freedom of an individual is of utmost important and cannot be allowed to be curtailed till the time guilt is proved and as such, this Court sees no reason to curtail the freedom of bail petitioner for indefinite period. Investigating Officer, who is present in Court, fairly stated that investigation qua the present bail petitioner is almost complete, save and except that he is not disclosing the address of the persons sitting at Dubai. But, this Court finds from the record that addresses of co-accused, named in the FIR, are very much mentioned in the FIR and as such, that cannot be a ground to deny the bail to the present bail petitioner. However, Mr. T.S. Chauhan advocates, undertakes that all necessary information available with the bail petitioner shall be shared with the investigating agency, to enable it to nab other co-accused sitting at Dubai. 12. By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. 12. By now it is well settled that gravity alone cannot be 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. 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 40 ; wherein it 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." 13. Otherwise also, normal rule is of bail and not jail. Otherwise also, normal rule is of bail and not jail. 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. 14. 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 categorically held that freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion. Hon''ble Apex Court has further held that till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. The relevant paras No.2 to 5 of the judgment are reproduced 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. 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. 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 ReInhuman Conditions in 1382 Prisons. 15. 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 ReInhuman Conditions in 1382 Prisons. 15. 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; (viii) reasonable apprehension of the witnesses being influenced; and (ix) danger, of course, of justice being thwarted by grant of bail. 16. In view of above, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bonds in the sum of Rs. one lac with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate, with 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 and he will deposit his passport with the investigating agency. 17. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 18. 17. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 18. 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 application alone. The petition stands accordingly disposed of. Copy dasti.