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2018 DIGILAW 838 (HP)

Sunil Kumar @ Sunny v. State Of Himachal Pradesh

2018-05-07

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J —Bail petitioner namely Sunil Kumar @ Sunny, who is behind the bars since July, 2017, has approached this Court in the instant proceedings, filed under Section 439 Cr. P.C., praying therein for grant of regular bail in connection with FIR No. 81/2017, dated 14.07.2017, under Sections 420 of IPC, registered at Police Station Lambagaon, District Kangra, Himachal Pradesh. 2. Sequel to order dated 20.04.2018, ASI Vijay Kumar has come present with 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. Perusal of record/status report reveals that FIR detailed hereinabove, came to be registered at the behest of the complainant Ms. Babita, who alleged that bail petitioner taking undue advantage of her ignorance to operate ATM, exchanged her ATM Card and subsequently fraudulently withdrew an amount of Rs. 1,73, 520/- from her account. Complainant after having received message in her mobile with regard to withdrawal made by the bail petitioner, came to know with regard to fraud played upon her by the bail petitioner and as such, lodged complaint against the bail petitioner. On 20th April, 2018, Ms. Sheetal Vyas, learned counsel representing the bail petitioner while inviting attention of this Court to (Annexure P-3 at Page-19) contended that entire amount i.e. Rs. 1,73, 520/- allegedly withdrawn by the bail petitioner fraudulently misusing ATM Card of the complainant stands refunded to her and in this regard, an application under Section 320 Cr. P.C, before the learned Court below, praying therein for compounding of offence allegedly committed by the bail petitioner was preferred, but the same was rejected. 4. Taking note of aforesaid submissions made by the learned counsel, representing the bail petitioner, this Court directed the learned Additional Advocate General to have instructions in this regard. Mr. Dinesh Thakur, learned Additional Advocate General on instructions of Investigating officer, who is present in the Court, fairly stated that an amount of Rs. 80, 000/- was recovered from the bail petitioner by the police during investigation and the remaining amount of Rs. 78, 500/- was paid by the brother of the bail petitioner to the complainant. Mr. Thakur, further acknowledged the factum with regard to compromise arrived inter se parties, wherein complainant after having received entire amount i.e. Rs. 80, 000/- was recovered from the bail petitioner by the police during investigation and the remaining amount of Rs. 78, 500/- was paid by the brother of the bail petitioner to the complainant. Mr. Thakur, further acknowledged the factum with regard to compromise arrived inter se parties, wherein complainant after having received entire amount i.e. Rs. 1,58, 575/- has resolved to settle the matter with the bail petitioner. 5. Ms. Sheeta Vyas, learned counsel representing the bail petitioner further informed this Court that appropriate proceedings have already been filed in this Court for quashing of FIR, on the basis of compromise arrived at inter se parties and same is pending adjudication before a Coordinate Bench of this Court. 6. I have heard the learned counsel for the parties and gone through the record. 7. Having taken note of the fact that amount allegedly withdrawn by the bail petitioner fraudulently by misusing the ATM Card of complainant stands refunded, this Court sees no reason to keep the bail petitioner behind the bars, especially when he has already suffered for more than 6 months behind the bars. Mr. Naresh Thakur, learned Additional Advocate General fairly stated that investigation is complete and nothing is required to be recovered from the bail petitioner and as such, his custodial interrogation is not required. He further contended that in case bail petitioner is released on bail, he may be directed to make himself available during the trial, as and when required. 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. 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. 9. 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." 10. 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. 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. 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. 11. 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. 11. 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. 12. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bonds in the sum of Rs. 1,00, 000/- with one local surety in the like amount to the satisfaction of concerned trial Court, 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 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. 13. It is clarified that if the petitioner misuses his 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. 14. 13. It is clarified that if the petitioner misuses his 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. 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 petition stands disposed of accordingly.