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2019 DIGILAW 176 (HP)

Karam Chand v. State of Himachal Pradesh

2019-02-08

SANDEEP SHARMA

body2019
JUDGMENT : SANDEEP SHARMA, J. 1. Since both the bail petitions arise out of the same FIR, as such, these were taken up together for hearing and are being disposed of vide this common judgment. 2. Bail petitioners, named hereinabove, have approached this Court in the instant proceedings filed under S.438 CrPC, praying therein for grant of anticipatory bail in connection with FIR No. 224 of 2017, dated 15.8.2017, under Ss.420, 409, 120-B, 201, 468 and 471 of IPC and S.13(2) of the Prevention of Corruption Act, 1988, registered at police Station, Solan, District Solan, Himachal Pradesh. 3. Sequel to orders dated 21.1.2019, Dr. Shiv Kumar, Addl. Superintendent of Police, Solan, has come present along with 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 employees, 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 established by the State of Himachal Pradesh for the purpose of liquor business. Similarly, for the sale and purchase of the liquor, company formulated Liquor Sales Policy for the years 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 petitioners namely, Karam Chand and Naresh Kumar, who had licence in the name of M/s Thakur Wine had purchased liquor in the sum of Rs. 4,89,43,041.35/- from the HPBL and in turn deposited a sum of Rs. 6. As per investigation, bail petitioners namely, Karam Chand and Naresh Kumar, who had licence in the name of M/s Thakur Wine had purchased liquor in the sum of Rs. 4,89,43,041.35/- from the HPBL and in turn deposited a sum of Rs. 3,87,30,538/- in the account of 'HPBL' and as of today a sum of Rs. 1,02,12,503.35/- is still payable by them to the HPBL. 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 stands already completed, whereas investigation with regard to the role played by the officials of 'HPBL' is still underway and as such, at this stage, there is nothing concrete on record to suggest that the bail petitioners in connivance with the officials of the HPBL manipulated the records 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 Court, 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. 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 shall 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. 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 can not be curtailed for indefinite period, especially when his/her guilt is yet to be 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. 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. 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 Re-Inhuman Conditions in 1382 Prisons." 12. By now it is well settled that gravity alone cannot be a 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. 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 ; 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 un-convicted 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 un-convicted 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. 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 also, normal rule is of bail and not jail. Apart from above, 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. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218 , Hon'ble Apex Court has held as under: "This Court in Sanjay Chandra vs. Central Bureau of Investigation, (2012) 1 SCC 40 , 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 nor 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 un-convicted person for the purpose of giving him a 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 and 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 that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. 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 that 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." 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; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 16. In view of above, present petitions are allowed and orders dated 21.1.2019, are made absolute subject to petitioners' furnishing fresh bail bonds in the sum of Rs. 5,00,000/- (Rs. Five Lakh) each with one local surety in the like amount each, to the satisfaction of the investigating officer, 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. e. They shall deposit the passports, if any, held by them with the investigating agency. 17. e. They shall deposit the passports, if any, held by them with the investigating agency. 17. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, 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 these petitions alone. The bail petitions stand disposed of accordingly.