Gurcharan Singh vs State of Punjab

Mehinder Singh Sullar, J.—Petitioner Gurcharan Singh son of Gulzar Singh has directed the instant petition for the grant of anticipatory bail in a case registered against him along with his other co-accused, vide FIR No. 218 dated 15.12.2012 (Annexure P1), on accusation of having committed the offences punishable under Sections 406 & 420 IPC, by the police of Police Station Jhabal, District Tarn Taran, invoking the provisions of Section 438 Cr.P.C. The crux of the prosecution version, which needs a necessary mention for the limited purpose of deciding the present petition for anticipatory bail and emanating from the record, is that, the Punjab Agro Food Grain Corporation Ltd. (for brevity "the complainant-Corporation") has supplied 1,00,972 bags (weighing 35 Kgs. each) of ''A'' grade paddy to the firm of petitioner M/s. Sohal Rice Mills, for custom milling for the year 2010-11. The firm acknowledged the receipt of the paddy and was required to return the rice of the same ''A'' quality to the complainant-Corporation within the stipulated period. Instead of returning the A-grade quality of rice of required quantity, the firm of the petitioner returned a very less quantity (weight) of rice. The remaining stock of paddy 84896 bags, weighing 19,908 quintals, was stated to have been misappropriated by the firm causing a huge loss to the complainant-Corporation amounting to of Rs. 3,99,03,395/- in this regard.

Leveling a variety of allegations and narrating the sequence of events, in all, according to the prosecution that the petitioner along with his other co-accused has cheated, misappropriated the indicated bags of rice of complainant-Corporation and thus they have committed the criminal breach of trust and pointed offences. In the backgrounds of these allegations and in the wake of complaint of District Manager of the complainant-Corporation, the instant case was registered against the accused, in the manner depicted here-in-above.

After hearing the learned counsel for the petitioner, going through the record with his valuable help and after deep consideration over the entire matter, to my mind, there is no merit in the present petition in this context.

Ex facie, the arguments of learned counsel that the petitioner has been falsely implicated in the instant case and since there is an arbitration clause in the agreement and no offences in question are made out against him, so, he is entitled to concession of anticipatory bail, are not only devoid of merits but misplaced as well.

As is evident from the record, that there are direct allegations, that the petitioner along with his other co-accused were entrusted 1,00,972 bags, weighing 35 Kgs. each, of grade-A paddy for shelling. They misappropriated 84896 bags, weighing 19,908 quintals of rice and caused huge loss of about ` 4 crores to the complainant-Corporation.

Moreover, the criminal and arbitral proceedings are entirely different. There is neither any statutory provision nor any legal principle that if there is an arbitration clause, then, the criminal proceedings cannot continue. In the instant case, the arbitrator cannot decide the question of criminality/crime committed by the petitioner. As the jurisdiction of criminal Court and arbitration tribunal are entirely different and distinct, therefore, the mere fact of existence of arbitration clause, ipso facto, is not a cogent ground to grant the benefit of anticipatory bail, as (contrary) urged on behalf of petitioner. This matter is no more res integra and is now well settled.

An identical question arose before the Hon''ble Supreme Court in a recent judgment in case State of Punjab Vs. Pritam Chand and Others, wherein, it was observed that under such circumstances, there is no bar for prosecution under the criminal law as well, although there may be a contract between the parties containing an arbitration clause. The same view was again reiterated by this Court in case Mohinder Singh Vs. State of Punjab and Others Therefore, the contrary submissions of the learned counsel that no indicated offences are made out against the petitioner "stricto sensu" deserve to be and are hereby repelled under the present set of circumstances, as the ratio of law laid down in the above indicated judgments (supra) "mutatis mutandis" is applicable to the facts of this case and is the complete answer to the problem in hand.

Taking into consideration the seriousness of allegations of heinous offences of cheating & misappropriation of about ` 4 crores, to me, the custodial interrogation of petitioner is essential to recover the indicated amount & case property. If he is allowed the benefit of anticipatory bail, then, the recovery of impugned amount & case property is not possible, which would naturally adversely affect & weaken the case of the prosecution and police will be deprived from unearthing the scam.

Not only that, it is now well settled principle of law that the anticipatory bail is not to be granted as a matter of course in all cases. The grant or refusal of such bail depends on the variety of circumstances, the cumulative effect of which, should enter the judicial verdict. The power u/s 438 Cr.PC is to be exercised sparingly and in exceptional cases keeping into focus the facts and circumstances of each case. The order of anticipatory bail cannot be allowed to circumvent normal procedure of arrest and investigation of the police. The Court has also to see that the investigation is in the province of the police and an order of anticipatory bail should not operate as an in-road into the statutory investigational power of the police, in exercising the judicial discretion in granting the anticipatory bail. The Court should not be unmindful of the difficulties likely to be faced by the investigating agency and the public interest likely to be affected thereby.

In the light of aforesaid reasons, taking into consideration the totality of other facts & circumstances, emanating from the record, as narrated here-in-above and without commenting further anything on merits, lest it may prejudice the case of either side during the course of trial of main case, the instant petition for anticipatory bail filed by the petitioner is hereby dismissed, in the obtaining circumstances of the case. Needless to mention that, nothing observed, here-in-above, would reflect, in any manner, on the merits of the main case, during the course of trial, as the same has been so recorded for a limited purpose of deciding the present petition for anticipatory bail.