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2019 DIGILAW 426 (JK)

Suresh Sharma v. State of J&K

2019-09-24

TASHI RABSTAN

body2019
JUDGMENT : Tashi Rabstan, J. The applicant, Sub Inspector Suresh Sharma, who is in custody since 06.09.2019, through the medium of this application seeks his release on bail. He is alleged to have committed the offences punishable under Section 5(1) (d) read with Section 5 (2) of J&K Prevention of Corruption, Act Svt. 2006 and Section 4-S of Prevention of Corruption (Amendment) Act, 2014. 2. The prosecution case, in brief, is that the police station Anti-Corruption Bureau, Rajouri received a written information from Ajay pal Singh (hereinafter to be referred as complainant), regarding demand from him by Sub Inspector Suresh Sharma (hereinafter to be referred as applicant). It is said that maternal uncle of the complainant Sharanjit Singh has been arrested in a fake case registered by the applicant, who was posted as Incharge Police Post Rajouri City. On 05.09.2019, when the complainant visited the Police Post, Rajouri City and enquired the matter from the applicant, the applicant demanded three lacs from him for helping his maternal uncle during investigation of the case. Out of three lacs, one lac was agreed to be paid in advance and rest of amount after bail out of his maternal uncle. It was stated that applicant threatened the complainant of harassing his maternal uncle in case he fails to pay bribe. On this complaint, a case FIR No. 02/2019 was registered on 06.09.2019, against the applicant and investigation was entrusted to Dy. S.P Gurmeet Singh Ghuman, a trap laying officer. On the intervening night of 6th and 7th September, 2019, a trap was laid to catch hold of applicant accepting bribe red handed. Accordingly, after completion of pre-trap proceedings, the complainant contacted the applicant on his mobile phone that he is coming with money and the applicant told him to come to his residential room. The said conversation of mobile phone is stated to have been tapped. The complainant alongwith shadow witness Sardar Mohd. Malik, A.E. entered the residential room of the applicant where he demanded and accepted the bribe amount of one lakh from the complainant and kept it in right pocket of his Short (Nikkar). On receiving the signal, the other team members nabbed the applicant on spot and from his personal search in presence of independent witnesses, bribe amount was recovered from his possession. On receiving the signal, the other team members nabbed the applicant on spot and from his personal search in presence of independent witnesses, bribe amount was recovered from his possession. In order to ascertain the genuineness of acceptance of bribe, a solution of sodium carbonate was prepared in which the finger of right hand of the applicant, his right hand and the pocket of Nikkar worn by him were washed, which gave positive result. Serial numbers of recovered GC notes were tallied with the slips possessed by the independent witnesses bearing serial numbers and denomination prepared during pre-trap proceedings and on comparison, it was found the same. Samples alongwith tainted currency notes were sealed and marked as exhibits in presence of independent witnesses who also signed the memo. The applicant-accused was taken into custody by the police team. 3. I have heard and considered the rival contentions of learned counsel appearing for the parties and perused the file. 4. Learned counsel for applicant has contended that the applicant has been arrested in a false and frivolous case and there was no demand or acceptance of bribe, so he is entitled for bail. 5. Non-applicant has filed the objections, insisting therein that the investigation in the case is at initial stage and the act of the applicant-accused being an officer of law enforcement agency is highly deplorable, because of which trust of the society at large has been shaken. It is also contended that applicant-accused is not cooperating with investigating agency, therefore his custodial questioning is required to ascertain some material facts. It is also stated that that investigation is yet to be concluded and there is possibility of accused winning over the material witnesses and may threaten the complainant. 6. Objections on behalf of the complainant have also been filed, vehemently opposing therein the prayer of the applicant. Learned counsel appearing for complainant has contended that the applicant is serving as a police officer to whom duty has been given to maintain law and order and corruption by a police officer performing his duties is unpardonable. He further contends that prima facie case against the applicant is established as he is caught red handedly while accepting the illegal gratification. 7. He further contends that prima facie case against the applicant is established as he is caught red handedly while accepting the illegal gratification. 7. When a person is arrested on the allegations of commission of heinous offences, two conflicting interests are pitted against each other, that is, personal liberty of individual involved and interest of society so as to prevent crime and punish criminal. Corruption causes significant damage to the country’s economic development and achievement of developmental goals. Significant levels of corruption are still thriving in India and have become a threat to national security. Police plays a critical role in the prevention and investigation of corruption so it must be free from all kinds of corruption and uphold the highest standards of integrity and accountability. The corruption by the police officer shakes the trust and confidence of people who work for police by reporting the crimes and general public at large. Crimes committed by the police against the victim are generally not reported who otherwise fear repercussions from the police. In order to facilitate the public to report the crimes committed by the police officers/officials there must be trust and confidence at individual and institutional levels that police serve the interest of justice and fairness and in case any police officer/official misuses his official position in contravention of established procedures and practices with the ulterior motive to gain illegal and undue benefit, there must be corrective and negative consequences to restore the public trust in democratic institutions. Police in this case has shown utmost fairness by investigating and as stated catching hold red handedly its own official which would definitely go on boost the morale and trust of public who intends to help the police in prevention and detection of crimes. This would further set an example that even if police department is seen as corrupt institution, still there is a ray of hope for common person to approach the same police for the prevention and detection of crimes. There is a need to have country wide resolution to weed out this cancer like disease of corruption which has become impediment in our growth and development. There is a need to have country wide resolution to weed out this cancer like disease of corruption which has become impediment in our growth and development. The power to grant or reject the bail is a discretionary power and in order to restore the faith in the democratic institutions it becomes bounded duty of court by rejecting the bail to ensure that investigation is conducted fairly and an example is set for others by punishing the public servant of his criminal misconduct. 8. The principles required to be kept in mind at the stage of considering the application for grant of bail are well settled. The court has to see whether the prima facie case is established against the accused. It cannot go into the evidentiary value, credibility and reliability of the witnesses and factors to be considered in an application for bail are (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 charge; (iii) severity of the punishment in the event of conviction; (iv) danger of 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 tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail (See: State of U.P. through CBI v. Amarmani Tripathi, (2005) 8 SCC 21 ). The Supreme Court in a case titled Kalyan Chandra Sarkar vs. Rajesh Ranjan, (2004) 7 SCC 528 had observed that the law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are (i) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; (iii) Prima facie satisfaction of the court in support of the charge. 9. In the present case, it appears that allegations against the applicant-accused are prima facie established as he was caught red handedly while accepting the illegal gratification and same is witnessed by independent witnesses. The trap appears to be properly made and the samples to determine the genuineness of illegal acceptance of the bribe were tested in a solution of Sodium Carbonate and were found to be positive. The conversation between the complainant and the applicant-accused is also stated to have been recorded A perusal of instant bail application would reveal that the applicant has neither whispered anything regarding trap proceedings nor has made any allegations of bias or prejudice against the complainant or investigating/trap laying team or even independent witnesses. 10. Admittedly, the applicant is an incharge of police post and an influential person, there is reasonable apprehension that he might temper with or otherwise adversely influence the investigation, which is still going and the statements of witnesses other than complainant are yet to be recorded and if the applicant-accused is enlarged on bail, his presence may influence the investigation by creating fear in the minds of the witnesses. As stated, search under section 165 Cr.P.C has been conducted at the residential home of applicant-accused for some documents regarding investigation of the case FIR NO. 540/2019 u/s 8/21/22 NDPS Act registered in Police Station Rajouri, in which the maternal uncle of the complainant is accused and for whose release the illegal bribe was demanded and accepted in this case, and more investigation is required in this regard to collect the material. 8 Bail App No. 158/2019 11. 540/2019 u/s 8/21/22 NDPS Act registered in Police Station Rajouri, in which the maternal uncle of the complainant is accused and for whose release the illegal bribe was demanded and accepted in this case, and more investigation is required in this regard to collect the material. 8 Bail App No. 158/2019 11. Given the facts and circumstances above and on comparative weighing of the factors discussed in the judgments cited above, particularly, that the prosecution has succeeded in establishing the prima facie charges against the applicant-accused and the investigation is still at its infancy for which custodial questioning of the accused is necessary and the applicant-accused being an influential person, the possibility of his winning over the material witnesses and tempering with prosecution witnesses cannot be ruled out. The bail application lacks merit, and same is, as such rejected.