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2019 DIGILAW 243 (HP)

Ramesh Sharma v. State of Himachal Pradesh

2019-03-08

SANDEEP SHARMA

body2019
JUDGMENT : SANDEEP SHARMA, J. 1. Bail petitioner namely, Ramesh Sharma, has 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 case FIR No. 230/2018, dated 23.11.2018, under Sections 420, 504, 506 and 34 of IPC, registered at police Station, Theog, District Shimla, Himachal Pradesh. 2. Sequel to order dated 9.1.2019, ASI Rajesh Kumar has come present alongwith the record. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record fresh status report prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned. 3. Before adverting to the factual matrix of the case, it may be noticed that vide order dated 27.11.2018, bail petitioner was ordered to be enlarged on interim bail in the event of his arrest on his furnishing bail bonds in the sum of Rs. 20,000/- with one surety in the like amount to the satisfaction of the Investigating Officer. Vide aforesaid order, this Court also directed the bail petitioner to join investigation. It is not in dispute that pursuant to aforesaid order passed by this Court, bail petitioner has joined the investigation, but since he failed to pay the amount allegedly received by him from the complainant, interim bail granted to him vide order dated 27.11.2018 could not be made absolute. 4. Close scrutiny of the record/status report, reveals that complainant namely, Dinesh Verma lodged a complaint at police Station, Theog, District Shimla, Himachal Pradesh, alleging therein that in the year, 2017, he alongwith other persons sold his/their apple crop to Ambe trading Company, but till date he has been not paid money by the proprietor of such company. Complainant alleged that he has still to take a sum of Rs. 5,40,000/- from the company, named hereinabove, whereas other persons namely, Nek Ram Sharma, Suman Sharma and Sanjay Sharma are to receive a sum of Rs. 5,75,0000/-, Rs. 98,420 & Rs. 3,40,000/- respectively from the proprietor of aforesaid company. Complainant alleged that despite repeated requests, bail petitioner as well as his other partners namely, Sunil Rattan and Parveen Nag failed to pay the amount and as such, case be registered against them. On the basis of aforesaid complaint having been filed by the complainant, FIR detailed hereinabove, came to be lodged against the present bail petitioner as well as other co-accused. On the basis of aforesaid complaint having been filed by the complainant, FIR detailed hereinabove, came to be lodged against the present bail petitioner as well as other co-accused. 5. On 9.1.2019, Mr. Dinesh Thakur, learned Additional Advocate General, on the instructions of Investigating Officer, informed that though partners of the bail petitioner are absconding, but brother of one partner namely, Sh. Parveen Nag has deposited a sum of Rs. 8 lac towards his share, whereas wife of another partner namely, Sunil Rattan has also assured that she would be depositing the amount. Since despite assurance Sunil Rattan failed to deposit the amount, he came to be arrested on 21.2.2019. As per investigation carried out by the investigating agency, complainant as well as other orchardist as named in the FIR had sold their apple crop to Ambe trading Company being run by the present bail petitioner and other co-accused, named hereinabove, but after sale of apple crop, bail petitioner and his other partners failed to make the payment to the complainant as well as other persons from whom they had purchased the apple crop. As per investigation, bail petitioner and other co-accused owe a sum of Rs. 24 lac in total to the persons from whom they had purchased the apple crop. 6. As has been taken note hereinabove, co-accused namely Parveen Nag has already deposited a sum of Rs. 8 lac, whereas present bail petitioner, who is present in Court states that after passing of order dated 9.1.2019, he had contacted the investigating agency with his share of money i.e. Rs. 8 lac, but they refused to accept the same, whereafter he prepared demand draft in the name of JMIC Theog. 7. Mr. Subhash Sharma, learned counsel representing the bail petitioner, produced demand draft prepared by the petitioner in the name of JMIC, Theog. It is quite apparent from perusal of record/status report that Ambe trading Company was being run by the petitioner as well as other persons namely Sh. Parveen Nag and Sh. Sunil Rattan and as such, they all are liable to pay a sum of Rs. 24 lac to the complainant as well as other persons. A sum of Rs. 8 lac stands already received by the complainant, as has been fairly stated by the learned Additional Advocate General, whereas a sum of Rs. Parveen Nag and Sh. Sunil Rattan and as such, they all are liable to pay a sum of Rs. 24 lac to the complainant as well as other persons. A sum of Rs. 8 lac stands already received by the complainant, as has been fairly stated by the learned Additional Advocate General, whereas a sum of Rs. 8 lac brought in the shape of demand draft made in the name of JMIC, Theog, can also be released in favour of the claimants as per their shares. 8. Petitioner is a local resident of the area and there is no material adduced on record by the investigating agency from where it can be inferred that in the event of petitioner's being enlarged on bail, there is every likelihood of his fleeing from justice, rather to prove his bona-fide, petitioner has already prepared demand draft amounting to Rs. 8 lac and as such, this Court sees no reason to reject the prayer made by the petitioner for grant of anticipatory bail. 9. Guilt, if any, of bail petitioner is yet to be proved, in accordance with law by the investigating agency by leading cogent and convincing evidence and as such, no fruitful purpose would be served in case petitioner is allowed to go behind the bars, especially when he has joined the investigation and has expressed his willingness to deposit his share of amount. 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 categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, 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. Hon'ble Apex Court further held that while considering prayer for grant of bail, 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. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid 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. 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. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012) 1 SCC 49; 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. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012) 1 SCC 49; 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. 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: (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, behavior, 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. 15. Consequently, in view of the above, order dated 27.11.2018, passed by this Court is made absolute subject to the petitioner furnishing personal bond in the sum of Rs. 1,00,000/- (Rs. One lakh) with one surety in the like amount, to the satisfaction of the Investigating Officer, besides the following conditions: a. He shall make herself 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 her 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. e. Petitioner after getting the demand draft prepared in the name of JMIC, Theog cancelled shall deposit sum of Rs. 8 lac with the investigating agency within a period of three days i.e. on 12.3.2019. 16. e. Petitioner after getting the demand draft prepared in the name of JMIC, Theog cancelled shall deposit sum of Rs. 8 lac with the investigating agency within a period of three days i.e. on 12.3.2019. 16. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, 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 this application alone. The bail petition stands disposed of accordingly.