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Himachal Pradesh High Court · body

2019 DIGILAW 141 (HP)

RAJU SHARMA v. STATE OF H. P.

2019-01-11

SANDEEP SHARMA

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JUDGMENT : Sandeep Sharma, J. Since all the bail petitions arise out of the same FIR, they are being taken up together for final disposal by this Court. 2. Bail petitioners, named hereinabove, have approached this Court in the instant proceedings filed under Section 438 of the Code of Criminal Procedure, praying therein for grant of anticipatory bail in connection with FIR No. 224 of 2017, dated 15.08.2017, under Sections 420, 409, 120-B, 201, 468, 471 of IPC and Section 13(2) of the Prevention of Corruption Act, 1988, registered at police Station, Solan, District Solan, Himachal Pradesh. 3. Sequel to order dated 7.1.2019, Dr. Shiv Kumar, Addl. S.P. Solan, has come present alongwith the record. 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. Record perused and returned. 4. Mr. Dinesh Thakur, learned Additional Advocate General, on the instructions of the Investigating Officer, who is present in Court, fairly stated that investigation in the case is complete qua the bail petitioners and at this stage, nothing is required to be recovered from them. He further stated that while enlarging the bail petitioners on bail, this Court may specifically direct them to make themselves available for investigation as and when required by the investigating agency because investigation qua other co-accused, who are HPBL employee, is still pending. 5. Close scrutiny of the status report/record, reveals that in July, 2016 company namely, Himachal Pradesh Beverage Limited (for short 'HPBL'), came to be incorporated by the State of Himachal Pradesh for the purpose of liquor business. Similarly, for the sale and purchase of the liquor, company formulated liquor sale policy for 2016-2017, wherein as per clause 4.1 of the liquor policy, no liquor could be sold on credit basis, but as per investigating agency, all the bail petitioners, who are valid licensees in connivance with the 'HPBL' officials, managed to purchase liquor on credit basis and then in turn deposited less amount and as such, caused huge loss to the Public Exchequer. 6. As per investigation, bail petitioner namely, Raju Sharma, who had licence in the name of M/s Raju Sharma had purchased liquor in the sum of Rs. 8,95,01,448.23/- from the HPBL and in turn deposited a sum of Rs. 6. As per investigation, bail petitioner namely, Raju Sharma, who had licence in the name of M/s Raju Sharma had purchased liquor in the sum of Rs. 8,95,01,448.23/- from the HPBL and in turn deposited a sum of Rs. 7,44,15,709.00 in the account of 'HPBL' and as of today a sum of Rs.1,50,85,739.23/- is still payable by him to the HPBL. Similarly, in the case of Rajneesh Kumar, he purchased liquor amounting to Rs.3,25,72,158.18/- from the 'HPBL' and deposited a sum of Rs.3,12,43,413.00 in the account of 'HPBL' and as of today, he owe sum of Rs. 13,28, 745.18 to HPBL. As far as bail petitioners namely, Rajesh Kumar and Vijay Singh, who had licence in the name of M/s Solan Venture, they allegedly purchased liquor in the sum of Rs.6,33,09433.41/-, but deposited sum of Rs.4,09,57,789/- in the account of the company and as such, liable to pay sum of Rs. 2,23,51,644.41/- to the company. 7. As per investigation, bail petitioners in connivance with the officials of the company, firstly managed to purchase the liquor on credit and then forged/manipulated the official records with a view to show that entire amount stands deposited. Investigation qua the bail petitioners stand already completed, whereas investigation with regard to role played by the official of 'HPBL' is still under way and as such, at this stage, there is nothing concrete on record to suggest that bail petitioners in connivance with the officials of the company manipulated the record to their advantage that too with a view to cheat the company. 8. Leaving everything aside, it has been brought to the notice of this Court that 'HPBL' has already filed civil suits for the recovery of amount payable by bail petitioners in the Civil Courts, which fact has not been disputed by the learned Additional Advocate General. 9. Having perused the record and heard the learned counsel representing the parties, this Court is of the view that no fruitful purpose would be served in case bail petitioners are sent behind the bars, especially when investigation is complete and nothing is required to be recovered from them. 9. Having perused the record and heard the learned counsel representing the parties, this Court is of the view that no fruitful purpose would be served in case bail petitioners are sent behind the bars, especially when investigation is complete and nothing is required to be recovered from them. Guilt, if any, of the bail petitioners is yet to be proved, in accordance with law and as such, this Court deems it fit to enlarge them on bail at this stage with the condition that they would make themselves available for trial and investigation as and when required by the investigating agency. 10. It has been repeatedly held by Hon'ble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved, in accordance with law. 11. 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 cannot be curtailed for indefinite period, especially when his guilt has not been 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. 12. 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. 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. 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. 14. 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: 1. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; 2. nature and gravity of the accusation; 3. severity of the punishment in the event of conviction; 4. danger of the accused absconding or fleeing, if released on bail; 5. character, behaviour, means, position and standing of the accused; 6. likelihood of the offence being repeated; 7. reasonable apprehension of the witnesses being influenced; and 8. danger, of course, of justice being thwarted by grant of bail. 15. Consequently, in view of the above, order dated 7.1.2019, passed by this Court is made absolute, subject to the petitioners furnishing their personal bonds in the sum of Rs. likelihood of the offence being repeated; 7. reasonable apprehension of the witnesses being influenced; and 8. danger, of course, of justice being thwarted by grant of bail. 15. Consequently, in view of the above, order dated 7.1.2019, passed by this Court is made absolute, subject to the petitioners furnishing their personal bonds in the sum of Rs. five lac with one surety in the like amount each to the satisfaction of the Investigating Officers, besides 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. 16. It is clarified that if the petitioners misuse 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. 17. 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 these applications alone. The bail petitions stand disposed of accordingly.