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2018 DIGILAW 585 (HP)

Gulshan Begam v. State Of Himachal Pradesh

2018-04-09

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J —Bail petitioners, namely Gulshan Begam and Danish Khan, apprehending their arrest, have approached this Court for grant of anticipatory 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. 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, 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, bail petitioners namely Gulshan Begam and Danish Khan, facilitated in one way or other the aforesaid transaction in the account of the co-accused Mustfa. 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 it had emerged that that he had taken substantial amount, which was subsequently transferred in the bank account of her daughter Alisha, who resides at Dubai. 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 it had emerged that 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 co-accused 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 persons namely Mustfa and other co-accused Faijal Babu, Jafar Shah and Alisha Pathan, who reside 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, bail petitioner namely Gulshan Begam and 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. Gulshan Khan is the husband of Gulshan Begam. 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 has not been able to investigate them. 6. Mr. Gulshan Khan is the husband of Gulshan Begam. 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 has not been able to investigate them. 6. Mr. Imran Khan, learned counsel, representing the bail petitioners namely Gulshan Begam and Danish Khan, states that there is nothing against the bail petitioner namely Gulshan Begam and Danish Khan because as per the complainant they had only persuaded her to contact the person namely Gulshan Khan, who in turn assured them that he would arrange work Visa for the son of the complainant. Mr. Khan, also stated that since entire amount i.e. Rs. 6,00, 000/- stands repaid to the complainant, bail petitioners namely Gulshan Begam and Danish Khan, deserves to be enlarged on bail. 7. Mr. Dinesh Thakur, learned Additional Advocate General, while opposing the aforesaid prayer having been made by learned counsel for the bail petitioner(s) , contended that keeping in view the gravity of offence allegedly committed by the bail petitioners, they do not deserve any leniency, rather needs to be dealt with severely. While admitting the factum with regard to repayment of an amount of Rs. 8,00, 000/-, Mr. Thakur, contended that mere repayment will not absolve bail petitioners from the offences committed by them. 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 petitioners, named hereinabove, at this stage, would not be in the interest of justice, rather in the event of petitioners being enlarged on bail, they will not only hamper the investigation, rather there is every likelihood of them fleeing from the justice. Investigating Officer, who is present in Court, fairly stated that investigation qua the present bail petitioners is almost complete, save and except they are 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 petitioners. However, Mr. 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 petitioners. However, Mr. Imran Khan, advocate undertakes that all necessary information available with the bail petitioners shall be shared with the investigating agency, to enable it to nab other co-accused sitting at Dubai. 8. 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, bail is not to be withheld as a punishment. 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. 9. The Hon''ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation , (2012) 1 SCC 40 ; 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. 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." 10. In Manoranjana Sinh Alias Gupta versus CBI , (2017) 5 SCC 218 , The Hon''ble Apex Court has held as under:- "This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 11. The Hon''ble Apex Court in Prasanta Kumar Sarkar v. 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. 12. Consequently, in view of the above, order dated 8.01.2018 passed by this Court, is made absolute, subject to the following conditions: a. They shall make themselves 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. They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and d. They shall not leave the territory of India without the prior permission of the Court. 13. 13. It is clarified that if the petitioners misuses their liberty or violates any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 14. 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 bail petitions stands disposed of accordingly. Copy dasti.