Intzar vs State Of H.P And Others

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking the pre-arrest bail. It has been asserted that the petitioner has been falsely implicated in FIR No.80 of 2023 for the commission of offence punishable under Section 379 of IPC dated 29.7.2023 and FIR No.99 of 2023 for the commission of offences punishable under Sections 379, 411, 201 and 34 of IPC dated 30.09.2023 registered at Police Station, Talai, District Bilaspur, H.P.

The FIR was registered against the petitioner at Police Station, Talai on 29.07.2023 asserting that the informant received a call from the call centre of the company that the site was down so he visited the spot and found that three Remote Radio Units (RRU) were missing from the tower.

Another FIR No.99 of 2023 was registered by Mr. Kulwinder stating that the tower located at Jhabola was down. He visited the spot and found three RRUs were missing. The petitioner was nowhere mentioned in the FIR No.80 of 2023 and his name was mentioned in the disclosure statement made by the main accused. The petitioner was arrested on 28.09.2023 and his name was added in FIR No.99 of 2023. The petitioner has been falsely implicated in FIR No.99 of 2023 as he was under police custody at the time of the registration of the FIR. The petitioner is a scrap dealer and the main accused had sold the stolen goods to him. The petitioner could not know that the goods being sold to him were stolen; therefore, the present petition was filed for seeking the pre-arrest bail.

The police filed a status report asserting that the informant Baljeet Singh made a complaint to the Police stating that he received a call regarding a tower not functioning. He visited the spot and found two Remote Radio Units were missing, which were worth ₹2,67,158/-. The police conducted the investigation. Amit Kumar, Shafi Mohammed, Surinder Kumar and Raj Kumar were interrogated. Their call details were also checked and they were found to be near the tower from where the theft was committed. The Police also interrogated Mosin and Intzar. Amit Kumar was found to be in contact with Mosin. He had talked to Mosin before and after the theft. Mosin and Intzar also talked to each other. Amit Kumar, Shafi and Raj Kumar had stolen the RRUs from the tower and had transported them. Intzar paid ₹80,000/- to Amit. Raj Kumar also produced the currency notes and showed the place where the vehicle was parked and from where the theft was committed. Amit Kumar used to talk to Mosin. The investigation is being conducted. The petitioner had purchased the earlier RRUs which were recovered from the possession of Mosin and Intzar. They are found to be involved in the commission of offences in the present case as well. Therefore, it was prayed that the present petition be dismissed.

I have heard Mr P.M. Negi, learned counsel for the petitioner and Mr. R.P. Singh, learned Deputy Advocate General for the respondent/State.

Mr. P.M. Negi, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. There is no evidence against him to connect him with the commission of crime. He is a scrap dealer and could not have known about the articles being stolen articles. The petitioner cooperated in the investigation; therefore, he prayed that the present petition be allowed and the petitioner be released on pre-arrest bail.

Mr. R.P. Singh, learned Deputy Advocate General for the respondent/State submitted that the petitioner had purchased the RRUs earlier. He was purchasing RRUs from the main accused and he was helping them in their disposal. The recovery of the RRUs is to be effected from the petitioner and the pre-arrest bail will hamper the investigation, hence, he prayed that the present petition be dismissed.

I have given considerable thought to the rival submissions at the bar and have gone through the records carefully.

It was laid down by the Hon’ble Supreme Court in P. Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that the power of pre-arrest is extraordinary and should be exercised sparingly. It was observed:

“67. Ordinarily, arrest is a part of the procedure of the investigation to secure not only the presence of the accused but several other purposes. Power under Section 438 Cr.P.C. is an extraordinary power and the same has to be exercised sparingly. The privilege of pre-arrest bail should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after application of mind as to the nature and gravity of the accusation; the possibility of the applicant fleeing justice and other factors to decide whether it is a fit case for grant of anticipatory bail. Grant of anticipatory bail to some extent interferes in the sphere of investigation of an offence and hence, the court must be circumspect while exercising such power for the grant of anticipatory bail. Anticipatory bail is not to be granted as a matter of rule and it has to be granted only when the court is convinced that exceptional circumstances exist to resort to that extraordinary remedy.”

While dealing with the economic offences, the Hon’ble Supreme Court held in P. Chidambaram (supra) that power under Section 438 of Cr.P.C. is to be exercised sparingly in case of economic offences. It was observed:-

“78. Power under Section 438 Cr.P.C. being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of society. In Directorate of Enforcement vs. Ashok Kumar Jain (1998) 2 SCC 105, it was held that in economic offences, the accused is not entitled to anticipatory bail.

The learned Solicitor General submitted that the "Scheduled offence" and "offence of money laundering" are independent of each other and PMLA being a special enactment applicable to the offence of money laundering is not a fit case for grant of anticipatory bail. The learned Solicitor General submitted that money laundering being an economic offence committed with much planning and deliberate design poses a serious threat to the nation's economy and financial integrity and in order to unearth the laundering and trail of money, custodial interrogation of the appellant is necessary.

Observing that economic offence is committed with deliberate design with an eye on personal profit regardless of the consequence to the community, in State of Gujarat vs. Mohanlal Jitamalji Porwal and others (1987) 2 SCC 364, it was held as under:-

"5.....The entire community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book. A murder may be committed in the heat of the moment upon passions being aroused. An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the community. A disregard for the interest of the community can be manifested only at the cost of forfeiting the trust and faith of the community in the system to administer justice in an even-handed manner without fear of criticism from the quarters which view white-collar crimes with a permissive eye unmindful of the damage done to the national economy and national interest..…"

Observing that economic offences constitute a class apart and need to be visited with a different approach in the matter of bail, in Y.S. Jagan Mohan Reddy vs. CBI (2013) 7 SCC 439, the Supreme Court held as under:-

"34. Economic offences constitute a class apart and need to be visited with a different approach in the matter of bail. The economic offences having deep-rooted conspiracies and involving huge loss of public funds need to be viewed seriously and considered as grave offences affecting the economy of the country as a whole and thereby posing serious threats to the financial health of the country.

While granting bail, the court has to keep in mind the nature of accusations, the nature of evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, circumstances which are peculiar to the accused, the reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public/State and other similar considerations." [underlining added]

Referring to Dukhishyam Benupani, Assistant Director, Enforcement Directorate (FERA) vs. Arun Kumar Bajoria (1998) 1 SCC 52, in Enforcement Officer, Ted, Bombay v. Bher Chand Tikaji Bora and others (1999) 5 SCC 720, while hearing an appeal by the Enforcement Directorate against the order of the Single Judge of the Bombay High Court granting anticipatory bail to the respondent thereon, the Supreme Court set aside the order of the Single Judge granting anticipatory bail.

Grant of anticipatory bail at the stage of investigation may frustrate the investigating agency in interrogating the accused and in collecting useful information and also the materials which might have been concealed. Success in such interrogation would elude if the accused knows that he is protected by the order of the court. Grant of anticipatory bail, particularly in economic offences would definitely hamper the effective investigation”.

In the present case two RRUs were stolen. The petitioner has been named by the main accused. Although, the same may not be a legally admissible piece of evidence, however, the same is sufficient to interrogate the accused and ascertain his involvement in the commission of the offence. The petitioner was also found in possession of six RRUs earlier. RRUs are not articles of common use and the petitioner should have verified their origin before purchasing them from the main accused. Therefore, it cannot be said that no prima facie case is made out against the petitioner at this stage.

The police have asserted that custodial interrogation of the petitioner is required to know about the stolen RRUs. The investigation is at the initial stage. It was laid down by Hon'ble Supreme Court in State Versus Anil Sharma (1997) 7 SCC 187 that where custodial interrogation is required, pre-arrest bail should not be granted. It was observed:-

We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-orientated than questioning a suspect who is well-ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful information and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible Police Officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.

Therefore, in view of the above, the petitioner is not entitled to the pre-arrest bail, hence, the present petitioner fails and the same is dismissed.

The observations made hereinbefore shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.