Dheeraj Kumar vs State Of Himachal Pradesh

Satyen Vaidya, J

Petitioner has been implicated as an accused in case FIR No. 07 of 2022, dated 17.11.2022 registered under Sections 406, 409, 467, 468, 471, 120-B of IPC and Section 28 of the H.P. Prevention of Specific Corrupt Practices Act, 1983, at Police Station, State Vigilance and Anti-Corruption Bureau, Una, District Una, H.P.

Petitioner has prayed for grant of pre-arrest bail in the above noted case. He was admitted to interim bail on 19.12.2022, whereafter the petitioner has joined the investigation as and when called to do so.

The case has been registered on two complaints. One, being submitted by the Superintendent of Police, State Vigilance and Anti-Corruption Bureau, North Range, Dharamshala on 10.5.2022 and the other by the Assistant Registrar, Co-operative Society, Una on 5.8.2022.

As per the status report submitted on behalf of the respondents, an inquiry was conducted and thereafter the present case was registered. The allegations against the petitioner are that he remained President of the Nangal Salangri Agriculture Services Co-operative Society, District Una (for short the “Society”) till 2016 and thereafter he remained the Secretary of the Society. Presently, he stands suspended. It is alleged against him that during his tenure as President and Secretary, the affairs of the Society were grossly mis-managed and various irregularities have been found in the records, which suggest of large scale misappropriation of funds. The investigation is stated to be in progress. Certain records have already been seized by the Investigating Agency and remaining have been requisitioned from concerned authorities.

The bail petition has been opposed on the ground that the allegations against petitioner are serious and in case of his release on bail, petitioner may tamper with the evidence and may affect the investigation of the case. It is also stated that there is wide spread resentment in the area.

On the other hand, the contentions raised on behalf of the petitioner is that he is innocent and has been falsely implicated. The inquiry is going on for the last about six months and nothing incriminating has been found against the petitioner. It is submitted that petitioner is innocent and has not committed any offence. Petitioner is stated to be permanent resident of VPO Nangal-Salangari, Tehsil and District Una, H.P. having roots in the society.

I have heard learned counsel for the parties and have also gone through the records of the case.

As per the case of respondent, the inquiry was initiated in the matter after receipt of complaint dated 10.5.2022 from the Superintendent of Police, SV & ACB, North Range, Dharamshala. The case was registered on 17.11.2022 and thereafter also sufficient time has elapsed. However, from the status report, no clinching evidence has been pointed out against the petitioner. The investigation is still in the realm of suspicions. The petitioner has already joined the investigation, from time to time.

The respondent has not been able to make out any case for custodial interrogation. Though, it was contended on behalf of the respondent that certain informations are to be extracted from petitioner, but the same cannot be said to be a valid and justified reasons for custodial interrogation, unless, it is shown that the investigation cannot be carried forward without keeping the accused in custody. Pre-trial incarceration is not the rule. In the given facts of the case, the custodial interrogation of the petitioner will not be warranted.

Petitioner is permanent resident of VPO Nangal-Salangari, Tehsil and District Una, H.P. and there is no apprehension of his fleeing or absconding from the course of justice. The investigation is still continuing and petitioner can be put to appropriate terms for not hampering the course of investigation.

The petitioner has already been put under suspension. He is not in custody of any record. Most of the material record has already been seized by the Investigating Agency. In this view of the matter, there is no reasonable apprehension of petitioner tampering with the records.

The importance of personal liberty as a constitutional mandate has been underlined by the Hon’ble Supreme Court in Siddharth vs. State of Uttar Pradesh and another (2022) 1 SCC 676, as under:

“10. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the Investigating Officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused.”

In Nathu Singh vs. State of Uttar Pradesh and others (2021) 6 SCC 64, the Hon’ble Supreme Court has observed as under:

“19. At first blush, while this submission appears to be attractive, we are of the opinion that such an analysis of the provision is incomplete. It is no longer res integra that any interpretation of the provisions of Section 438, Cr.P.C. has to take into consideration the fact that the grant or rejection of an application under Section 438, Cr.P.C. has a direct bearing on the fundamental right to life and liberty of an individual. The genesis of this jurisdiction lies in Article 21 of the Constitution, as an effective medium to protect the life and liberty of an individual. The provision therefore needs to be read liberally, and considering its beneficial nature, the Courts must not read in limitations or restrictions that the legislature have not explicitly provided for. Any ambiguity in the language must be resolved in favour of the applicant seeking relief. In this context, this Court, in the Constitution Bench decision of this Court in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565, which was recently upheld and followed by this Court in Sushila Aggarwal vs. State (NCT of Delhi) (2020) 5 SCC 1 at SCC p. 56, para 14, held as follows: (Gurbaksh Singh Sibbia case, SCC p. 586, para 26)

“26. We find a great deal of substance in Mr Tarkunde's submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section. Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An overgenerous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned.”

emphasis supplied)

However, such discretionary power cannot be exercised in an untrammeled manner. The Court must take into account the statutory scheme under Section 438, Cr.P.C., particularly, the proviso to Section 438(1), Cr.P.C., and balance the concerns of the investigating agency, complainant and the society at large with the concerns/interest of the applicant. Therefore, such an order must necessarily be narrowly tailored to protect the interests of the applicant while taking into consideration the concerns of the investigating authority. Such an order must be a reasoned one.”

Keeping in view the facts of the case and also aforesaid exposition, I am of the considered view that no case for custodial interrogation of petitioner is made out. The tool of custodial interrogation cannot be used to extract confession. Such interrogation is permissible where the Investigating Agency is without any means to extract the facts.

Keeping in view the entirety of the facts and circumstances of the case, the petition is allowed and the petitioner is ordered to be released on bail, in case of his arrest, in case FIR No. 07 of 2022, dated 17.11.2022 registered under Sections 406, 409, 467, 468, 471, 120-B of IPC and Section 28 of the H.P. Prevention of Specific Corrupt Practices Act, at Police Station, State Vigilance and Anti -Corruption Bureau, Una, District Una, H.P., on his furnishing personal bond in the sum of Rs.50,000/-with one surety in the like amount to the satisfaction of Investigation Officer. This order is, however, subject to following conditions: -

(i) That the petitioner shall make himself available for the purpose of investigation, an and when required.

(ii) That the petitioner shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever.

(iii) That the petitioner shall not make any inducement, threat or promise 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

(iv) That the petitioner shall not leave India without prior permission of this Court till completion of investigation and thereafter of the trial court.

Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove.

Petition stands disposed of.