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Himachal Pradesh High Court · body

2019 DIGILAW 742 (HP)

Nisha Verma v. State of Himachal Pradesh

2019-06-20

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. 1. By way of present bail petition filed under Section 438 Cr.P.C., prayer has been made on behalf of the petitioners for grant of anticipatory bail in FIR No. 29, dated 23.3.2017 registered at Police Station Arki, Solan, Himachal Pradesh under Sections 3 and 7 of the Essential Commodities Act, and Sections 420, 468, 471 read with S. 120B IPC. 2. Sequel to order dated 27.5.2019, ASI Pyare Lal has come present with the record. Mr. Sanjeev Sood, learned Additional Advocate General has also placed on record status report prepared by the investigating agency on the basis of investigation carried out by it. Record perused and returned.. 3. Mr. Ashwani Sharma, learned Additional Advocate General, on instructions from the Investigating Officer, fairly states that pursuant to order dated 1.5.2019, both the petitioners have joined the investigation and they are fully cooperating. Mr. Sharma, learned Additional Advocate General, further informs that the investigation is almost complete and at this stage, nothing is required to be recovered from the bail petitioners, as such, in case, this court intends to enlarge them on bail, they may be directed to make themselves available for investigation/trial, as and when asked by the Investigating Officer. 4. Having heard learned counsel for the parties and perused the material available on record, this court finds that FIR in question came to be lodged against the bail petitioners at the behest of Shri Shyam Bhatia, Inspector, Food, Civil Supplies and Consumer Affairs, Arki, Solan, who alleged that on 1.3.2017, fair price shop of the bail petitioner, Prem Chand was inspected by him, but the petitioner No. 1, in whose favour fair price shop has been allotted, failed to make the record available. As per complainant, both the bail petitioners subsequently fabricated the record and also sold controlled essential items to the persons, other than the ration card holders. On the basis of aforesaid complaint having been made by the complainant, case under Ss. 3 and 7 of the Essential Commodities Act and Sections 420, 468, 471 read with S. 120B IPC came to be registered against the bail petitioners. 5. On the basis of aforesaid complaint having been made by the complainant, case under Ss. 3 and 7 of the Essential Commodities Act and Sections 420, 468, 471 read with S. 120B IPC came to be registered against the bail petitioners. 5. It is not in dispute that the investigation in the case is complete and nothing is required to be recovered from the bail petitioner, as such, this Court sees no reason for the custodial interrogation of the bail petitioners, who otherwise also have made themselves available for investigation. 6. Otherwise also, guilt if any, of the petitioners is yet to be proved by the investigating agency in accordance with law, by leading cogent and convincing evidence, as such, their freedom cannot be curtailed for an indefinite period during trial. By now it is well settled that freedom of an individual is of utmost importance and same cannot be curtailed for an indefinite period, as such, this court sees no reason to keep the bail petitioners behind the bars for an indefinite period, especially for the reasons stated herein above. Both the petitioners are local residents of District Solan, and there is no likelihood of their fleeing from the justice. 7. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh v. State of Uttar Pradesh and another, 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. 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. 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. 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 Re-Inhuman Conditions in 1382 Prisons." 8. By now it is well settled that gravity alone cannot be a decisive ground to deny bad, 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 v. Central Bureau of Investigation, (2012) 1 Supreme Court Cases 49; 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. 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." 9. 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 m mmd 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' 10. Otherwise also normal rule is of bail and not jail. Apart from above, Court has to keep m mmd 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' 10. In Manoranjana Sink alias Gupta v. CBI, (2017) 5 SCC 218 , Hon'ble Apex Court has held as under: "This Court in Sanjay Chandra v. 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 unconvicted 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. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 11. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 11. The 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. 12. In view of above, bail petitioners have carved out a case for themselves and as such, present petition is allowed. Order dated 1.5.2019 is made absolute subject to petitioners furnishing fresh bail bonds in the sum of Rs. 1,00,000/- (Rs. One Lakh) each with one local surety in the like amount, to the satisfaction of the Chief Judicial Magistrate concerned/trial court, 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 him/her 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 surrender passport, if any, held by them. 13. 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. 14. 13. 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. 14. 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 petition alone. The petition stands accordingly disposed of.