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Himachal Pradesh High Court · body

2019 DIGILAW 1577 (HP)

Anil Kumar Sharma v. Naresh Kumar Alias Nika

2019-10-24

SURESHWAR THAKUR

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JUDGMENT : Sureshwar Thakur, J. The informant/victim, becoming aggrieved, by, an order made by the learned Additional Sessions Judge-I, Shimla, hence, affording indulgence of anticipatory bail, vis-a-vis, the accused/respondent No.1, herein, has, thereagainst motioned this Court, for quashing, the affirmative pronouncement made, upon, bail petition No. 338/2019, on, 29.8.2019, hence by the learned Additional Sessions Judge-I, Shimla. 2. At the out set, the learned counsel appearing for the accused/respondent No.1, has with vigour, made a vehement address before this Court (a) that the informant/victim, has no locus standi, to cast a challenge, vis-a-vis, an affirmative order becoming pronounced, upon, the afore bail petition, hence by the learned Addl. Sessions Judge concerned, (b) given the befitting locus standi to cast a challenge, vis-a-vis, the afore order, being solitarily vested, in, the State, and, with the latter not making any motion, before this Court, thereupon, the motion as made herebefore, by the victim/informant, being, as, mis-recoursed legal remedy. 3. However, the afore contention is rendered rudderless, in the face of the Hon'ble Apex Court, in, a case titled, as, Amanullah and another vs. State of Bihar and others, (2016) 6 SCC 699 , making, the, hereafter extracted expostulations, in, paragraphs No.19 and 20 thereof, paras whereof stand extracted hereinafter:- "19. The term 'locus standi' is a latin term, the general meaning of which is 'place of standing'. The Concise Oxford English Dictionary, 10th Edn., at page 834, defines the term 'locus standi' as the right or capacity to bring an action or to appear in a court. The traditional view of 'locus standi' has been that the person who is aggrieved or affected has the standing before the court, i.e., to say he only has a right to move the court for seeking justice. Later, this Court, with justice-oriented approach, relaxed the strict rule with regard to 'locus standi', allowing any person from the society not related to the cause of action to approach the court seeking justice for those who could not approach themselves. Now turning our attention towards the criminal trial, which is conducted, largely, by following the procedure laid down in the Cr.PC. Since, offence is considered to be a wrong committed against the society, the prosecution against the accused person is launched by the State. It is the duty of the State to get the culprit booked for the offence committed by him. Since, offence is considered to be a wrong committed against the society, the prosecution against the accused person is launched by the State. It is the duty of the State to get the culprit booked for the offence committed by him. The focal point, here, is that if the State fails in this regard and the party having bonafide connection with the cause of action, who is aggrieved by the order of the court cannot be left at the mercy of the State and without any option to approach the appellate court for seeking justice. 20. In this regard, the Constitution Bench of this Court in the case of P.S.R. Sadhanantham's case (supra) has elaborately dealt with the aforesaid fact situation. The relevant paras 13, 14 and 25 of which read thus: "13. It is true that the strictest vigilance over abuse of the process of the court, especially at the expensively exalted level of the Supreme Court, should be maintained and ordinarily meddlesome bystanders should not be granted "visa". It is also true that in the criminal jurisdiction this strictness applies a fortiori since an adverse verdict from this Court may result in irretrievable injury to life or liberty. 14. Having said this, we must emphasise that we are living in times when many societal pollutants create new problems of unredressed grievance when the State becomes the sole repository for initiation of criminal action. Sometimes, pachydermic indifference of bureaucratic officials, at other times politicisation of higher functionaries may result in refusal to take a case to this Court under Article 136 even though the justice of the lis may well justify it. While "the criminal law should not be used as a weapon in personal vendettas between private individuals", as Lord Shawcross once wrote, in the absence of an independent prosecution authority easily accessible to every citizen, a wider connotation of the expression "standing" is necessary for Article 136 to further its mission. There are jurisdictions in which private individuals - not the State alone - may it statute criminal proceedings. The Law Reforms Commission (Australia) in its Discussion Paper No. 4 on "Access to Courts - I Standing: Public Interest Suits" wrote: "The general rule, at the present time, is that anyone may commence proceedings and prosecute in the Magistrate court. There are jurisdictions in which private individuals - not the State alone - may it statute criminal proceedings. The Law Reforms Commission (Australia) in its Discussion Paper No. 4 on "Access to Courts - I Standing: Public Interest Suits" wrote: "The general rule, at the present time, is that anyone may commence proceedings and prosecute in the Magistrate court. The argument for retention of that right arises at either end of the spectrum - the great cases and the frequent petty cases. The great cases are those touching Government itself - a Watergate or a Poulson. However independent they may legally be any public official, police or prosecuting authority, must be subject to some government supervision and be dependent on Government funds; its officers will inevitably have personal links with government. They will be part of the 'establishment'. There may be cases where a decision not to prosecute a case having political ramifications will be seen, rightly or wrongly, as politically motivated. Accepting the possibility of occasional abuse the Commission sees merit in retaining some right of a citizen to ventilate such a matter in the courts." Even the English System, as pointed by the Discussion Paper permits a private citizen to file an indictment. In our view the narrow limits set in vintage English Law, into the concept of person aggrieved and "standing" needs liberalisation in our democratic situation. In Dabholkar case this Court imparted such a wider meaning. The American Supreme Court relaxed the restrictive attitude towards "standing" in the famous case of Baker v. Carr. Lord Denning, in the notable case of the Attorney-General of the Gambia v. Pierra Sarr N'jie, spoke thus: "... the words "person aggrieved" are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him;" Prof. S.A. de Smith takes the same view: "All developed legal systems have had to face the problem of adjusting conflicts between two aspects of the public interest - the desirability of encouraging individual citizens to participate actively in the enforcement of the law, and the undesirability of encouraging the professional litigant and the meddlesome interloper to invoke the jurisdiction of the courts in matters that do not concern him." Prof. H.W.R. Wade strikes a similar note: "In other words, certiorari is not confined by a narrow conception of locus standi. It contains an element of the actio popularis. This is because it looks beyond the personal rights of the applicant; it is designed to keep the machinery of justice in proper working order by preventing inferior tribunals and public authorities from abusing their powers." In Dabholkar case, one of us wrote in his separate opinion: "The possible apprehension that widening legal standing with a public connotation may unloose a flood of litigation which may overwhelm the Judges is misplaced because public resort to court to suppress public mischief is a tribute to the justice system." This view is echoed by the Australian Law Reforms Commission. XX XX XX 25. In India also, the criminal law envisages the State as a prosecutor. Under the Code of Criminal Procedure, the machinery of the State is set in motion on information received by the police or on a complaint filed by a private person before a Magistrate. If the case proceeds to trial and the accused is acquitted, the right to appeal against the acquittal is closely circumscribed. Under the Code of Criminal Procedure, 1898, the State was entitled to appeal to the High Court, and the complainant could do so only if granted special leave to appeal by the High Court. The right of appeal was not given to other interested persons. Under the Code of Criminal Procedure 1973, the right of appeal vested in the States has now been made subject to leave being granted to the State by the High Court. The complainant continues to be subject to the prerequisite condition that he must obtain special leave to appeal. The fetters so imposed on the right to appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. The fetters so imposed on the right to appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. The Law Commission of India gave anxious thought to this matter, and while noting that the Code recognised a few exceptions by way of permitting a person aggrieved to initiate proceedings in certain cases and permitting the complainant to appeal against an acquittal with special leave of the High Court, expressed itself against the general desirability to encourage appeals against acquittal. It referred to the common law jurisprudence obtaining in England and other countries where a limited right of appeal against acquittal was vested in the State and where the emphasis rested on the need to decide a point of law of general importance in the interests of the general administration and proper development of the criminal law. But simultaneously the Law Commission also noted that if the right to appeal against acquittal was retained and extended to a complainant the law should logically cover also cases not instituted on complaint. It observed: "58......Extreme cases of manifest injustice, where the Government fails to act, and the party aggrieved has a strong feeling that the matter requires further consideration, should not, in our view, be left to the mercy of the Government. To inspire and maintain confidence in the administration of justice, the limited right of appeal with leave given to a private party should be retained, and should embrace cases initiated on private complaint or otherwise at the instance of an aggrieved person." However, when the Criminal Procedure Code, 1973 was enacted the statute, as we have seen, confined the right to appeal, in the case of private parties to a complainant. This is, as it were, a material indication of the policy of the law." (emphasis supplied ) (a) vis-a-vis, the import carried, by, the phrase "locus standi", and, it mandating therein, vis-a-vis, upon, failure of the State, to, cast a challenge, vis-a-vis, those orders rendered by the courts of law, upon, theirs purportedly mis-exercising jurisdiction, under, the powers, vested in them, under the Cr.P.C., rather, yet, facilitating the aggrieved, from, the apposite orders rendered, by, the courts of law concerned, upon, theirs exercising jurisdiction, under the Cr.P.C., to, rather both hold, the, befitting requisite locus standi, and, also to concomitantly cast a challenge thereagainst, before the revisional courts, (b) however, only upon, the imperative therein, cast ingredients becoming evidently satiated, inasmuch, as, the aggrieved, holding a bonafide connection, with, the cause of action, and, also his being palpably aggrieved, by, the purported erroneous orders, rendered, hence by the courts of law, upon, theirs exercising jurisdiction(s) vested, in them, under, the relevant provisions, of, the Cr.P.C. Since, the, informant also don, the, mantle, of, a victim, vis-a-vis, offences embodied, in the apposite FIR, thereupon, he hence satiate, the, afore expostulations, and, emphatically also he holds, a prima facie connection, with, the apt cause, of, action, and, whereupon, he hold, the, befitting locus standi, to, cast an onslaught thereto. 4. Be that as it may, the learned counsel appearing for the accused/respondent No.1, has contended with much vigour, that, the order impugned before this Court, enjoining its, becoming validated, by this Court, (a) given the bail applicant/respondent No.1 herein throughout rendering cooperation, in, the investigations, as, stood conducted, by, the Investigating Officer concerned, and, also with there being no evidence against him, vis-a-vis, his either influencing, the, prosecution witnesses, or his tampering, with, prosecution evidence, and, hence the revisionist, holding no empowerment, to, make any valid espousal, before this Court qua the impugned order being, interfered with. 5. 5. However, the afore made argument, is, bereft of any vigour, as, dehors, the respondent/accused No.1 not making, any, evident breaches, vis-a-vis, the conditions, as, pronounced for compliances therewith, by him, does, leverage this Court, to, in the exercise revisional jurisdiction, to, rather test the validity, of, the reasoning, as, assigned by the learned court below, in its proceeding, to, not order, for, the accused/respondent No.1, being subjected, to, custodial interrogation, for hence, the recovery, of, the embezzled sums of money, becoming, effectuated from him, (a) rather its proceeding, to, afford, the, indulgence of prearrest bail, to, the accused/respondent No.1 herein. Conspicuously also any evident breaches, vis-a-vis, any imperative conditions, set forth, in the apposite order, validly empowers only, the, court making the apposite order, to, hence cancel, the, facility of bail, whereas, legally unmeritworthy, reasoning(s) made therein, rather empowers, the, revisional court, to, make interference(s) therewith. Consequently, it is imperative, for this Court, to discern from the record, whether the reasons, as, stood assigned, hence, by the learned Additional Sessions Judge concerned, for, affording, the, indulgence, of, pre-arrest bail, to respondent No.1 herein/accused, is/are meritworthy. (a) The solitary reason which visibly prevailed, upon, the learned Additional Sessions Judge concerned, to, grant, the, indulgence of pre-arrest bail, vis-a-vis, the accused/respondent No.1, is, anvilled, upon, the factum, qua there existing, no relationship of employer, and, employee inter se the accused/respondent No.1, and, the victim/informant, and, hence, there being no occasion, for, entrustment of sums of money, to, the accused, (b) and, also concomitantly their being, no, embezzlement(s) thereof, (c) and, thereupon, also there being no necessity, for, the embezzled sums of money hence becoming ensured to be recovered, from, the accused/respondent No.1, upon his being ordered, to, be subjected to custodial interrogation. However, the afore reasoning, is, benumbed, (d) given a perusal of the status report as putforth hence before the learned Additional Sessions Judge concerned, rather unfolding, qua therein, a, trite allusion, being made, vis-a-vis, the defence rather canvassing, vis-a-vis, the afore entrusted sums of money, borne in a sum of Rs.9,65,000/-, becoming robbed, from him, at the HRTC Workshop, occurring between Taradevi-Shoghi, (e) reiteratedly, the afore propagation, does bringforth, an, acquiescence, of, the bail petitioner, vis-a-vis, his becoming entrusted, with, the afore sums of money, (f) and, also a, further acquiescence emanating therefrom qua there also occurring, a, relationship of employer and employee, inter se both, and, further, an, allusion, of, the status report filed, by the prosecution before the learned Additional Sessions Judge concerned, rather unveiling the factum, vis-a-vis, the, CCTV camera, as, installed at the relevant site, of, occurrence, rather omitting to, make any display, to, mete succor, vis-a-vis, the afore defence, as, stand propagated by the bail-petitioner/accused, (g) thereupon, with prima facie evidence, existing on record, qua the afore sums, of, money, rather standing embezzled, and, hence thereupon there was, a, dire necessity, for, the learned trial Court, to proceed, to, decline, the, indulgence, of, pre-arrest bail, to, the bail-applicant/accused, (h) and, rather it was, incumbent upon, the learned Additional Sessions Judge concerned, to insist, upon, the Investigating Officer, to, effectuate hence the recovery, of, the afore embezzled sums, of, money, at the instance of the accused, through, the bail applicant, being ordered, to be subjected, to, custodial interrogation. The afore palpable undisputed facts, constrains this court, to, make a conclusion, vis-a-vis, the learned Additional Sessions Judge concerned, not only, overlooking the afore germane prima facie evidence, besides hers hence also overlooking, the, prima facie probative sanctity thereof, and, hence, she has mismaneuvered, both, facts and law, in, affording, the, indulgence, of, pre-arrest bail tot he applicant/accused/respondent No.1. 6. For the foregoing reasons, the instant petition is allowed, and, the impugned order rendered by learned Additional Sessions Judge-I, Shimla, upon, Bail Petition No. 338/2019, on 29.8.2019, is quashed, and, set aside. However, it is made clear that the observations made hereinabove shall have no bearings on the merits of the case. All pending applications also stand disposed of.