Kewal Ram Chauhan vs State of H.P.

R.S. Thakur, J.—This application for bail has been moved by Kewal Ram Chauhan, u/s 439 of the Code of Criminal Procedure The facts are that the applicant was arrested on June 11, 1986 by the police (Enforcement South Zone), Shimla, as a case F. 1. R. No. 21 of 1983, under Sections 379, 420, 467, 468, 471, 120-B of the I.P.C. and Sections 41 and 42 of the Indian Forest Act and Section 5(2) of the Prevention of Corruption Act, 1947 has been registered against him and some other co-accused, namely, Varinder Singh, his son, Mishroo Mal a contractor, C.R. Premi,the then Divisional Forest Officer, Chopal, Chatter Singh, Assistant Conservator of Forests, Charan Dass, Guard, Sukchain Singh, Range Officer, Balak Ram, Block Officer, Parma Nand, Field Kanungo and Yash Paul Singh. The allegations, as revealed by the prosecution at the time of the arguments, against them are that during the period of 1981 to 1983 some private owners in Shilla Block Tharoch Range under the Divisional Forest Officer, Chopal , sold some timber in a private sale to some petty contractors and those contractors then further resold those trees to said MishrooMal. Said Mishroo Mal then obtained felling order in respect of those trees from the said Divisional Forest Officer, Chopal, which is dated November, 2, 1981, and he, in collaboration with the accused Varinder Singh, the son of the applicant, then carried out the felling and conversion operations in the Shilla Block by employing the labour.

The further allegation against these accused are that they all entered into a criminal conspiracy and by carrying out a fake demarcation on the spot felled and converted trees from the Government forest fraudulently showing them to be in the land owned by the private owners who had sold trees to them. According to the investigating agency this Mishroo Mai was a mere �Benami� of the applicant and as a matter of fact it was the applicant who was managing the entire operation while himself remaining behind the curtain, as has been revealed by the confessional statements of the two of the accused, namely Mishroo Mai, contractor and Sukhchain Singh, Range Officer who have been declared as approvers. A perusal of the statement of these two persons shows that before this felling and conversion operation was embarked upon by the accused in Shilla Block, Sukhchain Singh, Range Officer, was transferred from Chopal to Tharoch Range comprising Shilla Block at the instance of the applicant and he was sent there with the brief by the applicant that he would extend all help in this operation and said Sukhchain Singh then obliged the applicant by preparing fictitious documents which found the basis of issuance of export permit by the Divisional Forest Officer, Chopal, under which the timber was carried from Shilla Block to Yamuna Nagar for sale.

According to said Mishroo Mai he was a mere �Benami� of applicant and it was the applicant and his son Varinder Singh who made investment in this entire operation and said Mishroo Mal was only made nominal payments for lending his name as contractor of this transaction and that almost the entire sale proceeds of the timber, transported to Yamuna Nagar and sold through M/S Piare Lal Joginder Paul, their sale agents at Yamuna Nagar, was received either by the applicant or his son Varinder Singh. It is also alleged that in the garb of this purchase by the applicant and his collaborators of 166 trees standing on private lands they sold as many as 26,000 scants through M/S Piare Lal Joginder Paul during the aforesaid period and the. total sale proceeds thereof received by them amounts to Rs. 35,51,426.00.

The applicant in his bail application has averred that after his arrest on June 11, 1986, the Sessions Judge (special Judge), Shimla, remanded him to the police custody on Junel2, 1986 till June 16, 1986 and thereafter again on June 16, 1986 he was remanded to police custody till June 20, 1986 . According to him he was previously arrested by the police in a Similar case in December, 1985 when after remaining in police custody for five days he was released on bail on December 26, 1985 (sic) and during and prior to that period a number of raids were conducted by the police at the houses of the applicant and his relations and he also continued joining the police during investigation and he had formed an opinion that he would not have to undergo any further arrest in this behalf. After his release on bail in December 1985, however, he submitted a memorandum against the Hon�ble Chief Minister, Himachal Pradesh to the Hon�ble Prime Minister of India as a result of which the State administration became hostile to him and, out of vengeance, not only the instant case but a number of other cases of illicit felling have been registered against him at the instance of the State administration with a view to harass him through incarceration which is nothing but a victimisation of the applicant on political grounds. He has, therefore, prayed for releasing him on bail not only in the instant case but also in the other cases which are said to have been registered against him. He has also averred that nothing has to be recovered from him by the police. He has been a Member of Himachal Pradesh Vidhan Sabha for three terms representing Chopal constituency and that there is no likelihood of his absconding or tampering with the prosecution evidence. The applicant has also annexed to the bail application a copy of the order of the learned Sessions Judge, Shimla dated June 12, 1986 whereby the applicant was remanded to police custody till June 16, 1986.

The learned Assistant Advocate General at the time of arguments has opposed the bail application on the ground that the police is yet to recover certain account books pertaining to the felling, converting and timber transporting operations which is an important link evidence establishing applicant�s connection with the deal in question and that in case he is released on bail the investigation in this behalf would be seriously affected.

The learned Counsel for the applicant on the other hand has contended that there is no force in this contention and that there is no justification in refusing the bail to the applicant on this ground which has been pressed into service for no plausible reasons.

I have carefully considered the arguments and also the facts and the circumstances of the case brought to my notice.

A Constitution Bench of the Supreme Court in Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, has finally laid down the law which should govern the cases with regard to the grant of bail under Sections 438 and 439 of the Code of Criminal Procedure u/s 438 Code of Criminal Procedure the powers have been given to the High Courts or the Courts of session to order the release of a person accused of a non bailable offences under appehension of being arrested in connection therewith at the time of his arrest, whereas, the same powers are exercisable by these courts after such person has been arrested u/s 439 of the Code of Criminal Procedure It was, however, made clear in this ruling that the considerations which have to be kept in mind while granting or rejecting anticipatory bail u/s 438 Code of Criminal Procedure are the same which should govern the grant or rejection of bail after arrest u/s 439 Code of Criminal Procedure namely, that the Court before granting or rejecting bail in cases involving non-bailable offences particularly where the trial has not yet commenced should take into consideration various matters such as: (i) nature and seriousness of the offence; (ii) character of the evidence; (iii) circumstances which are peculiar to the accused which may� raise reasonable appehension that the presence of the accused not being secured at the trial; (iv) reasonable apprehension of witnesses being tampered with and (v) the larger interest of the public or the State and similar other considerations.

It has also been clearly laid down that subject to these considerations the Court should be left with widediscreationary powers to grant or refuse the bail under the postulation that the courts in view of their wide experience would exercise this discretion in a judicial manner in a given set of circumstances which can by no stretch of imagination be exhaustively enu merated.

It is apparent that having regard to the various pro visions of the relevant law the main idea behind keeping the person accused of a non-bailable offence in detention is to secure his presence at the time of the trial of the offence he has been accused of and, naturally, the more serious theoffence the more is the apprehension of the possibility of his eluding such trial and the provisions with regard to the bail have been made to vouchsafe the presence of the accused to face the trial by empowering the courts to improve appropriate condition in this behalf- 11. It is a cardinal principle of our criminal jurisprudence that the accused is presumed to be innocent unless proved guilty and his personal liberty is of paramount importance and a duty is cast upon the Courts to see that it is not jeopardised unless there are compelling reasons to do so.

Now keeping these guidelines in view-this Court has to see whether the bail application in hand deserves to be allowed ?

It may be said at the very out set that the applicant in this bail application has not only sought to be released on bail in the F.I.R. No. 21/83 under which he has been detained at the moment but also sought anticipatory bail in respect of a number of other similar cases which have been separately registered against him. This, however, cannot be done. Even in the case of anticipatory bail u/s 438 Code of Criminal Procedure as held in G.S. Sibbid�s case (supra) no such blanket order can be passed and the anticipatroy bail can be granted only in the case which is the subject matter of the bail application before the Court. This position has been conceded by the learned Counsel for the applicant as well and thus the application would be confined only to the case F.I.R. No. 21 of 1983 under which the applicant has been detained. Although it has been stated in the bail application that the detention of the applicant was malafide as a result of political vendetta but that point was also not pressed by the learned Counsel for the applicant at the time of the arguments. The only point that was argued by the learned Counsel was that in the first place no documents or account books connected with the case were in possession of the applicant and that in any case such documents or accounts had no relevancy so far as the present case is concerned.

The learned Assistant Advocate General, as I have already observed, has also not contended before me that the applicant was either likely to abscond so as to avoid facing the trial of the case or was likely to tamper with the prosecution evidence. His only case was that the custody of the applicant was required by the police in order to recover the account books and connected documents from his possession in furtherance of the investigation which are of utmost importance for establishing that the applicant was, in fact, the main accused in this episode.

I have carefully considerd these aspects of the question and feel that having regafd to the facts and the circumstances of the case this plea on the part of the investigating agency would not justify any further jeopardising the liberty of the bail applicant. There is no doubt that although this felling, conversion, transportation and sale of timber in question which is of gigantic proportions by any standards was done in the name of Mishroo Mal and Co. but the son of the applicant Varinder Singh has been an active member in this prima facie nefarious activity in the capacity of �mukhtiar-am� of said Mishroo Mai and then as per record, the bulk of the sale proceeds has also been drawn either by the applicant or his son or their servant and while thismay prima facie establish a connection between theapplicant and the Mishroo Mai and Co., it is; difficult to presume that the applicant must be in the possesion of the books of accounts pertaining to this company, The learned Assistant Advocate General at the time of the argu-ments was not able to show from the record any. statement; wherein even a pasing reference has been made that the applicant was in possession of the account-books. The learned Assistant Advocate General has contended that although there is no such statement, but, since the applicant was the prime actor in the whole drama, it should be presumed that he was in possession of the account-books. This contention, in my opinion, is wide off the mark and not sustainable. In any case, as has been held in Sibbia�s case (supra) simply because during investigation the investigating agency may have to effect certain recoveries as a result of statement of the accused u/s 27 of the Indian Evidence Act, cannot per-se be the ground for refusing the bail of the accused and that in case any such contingency arises the Court enjoys powers to provide for such contingency in the order itself whereby the accused is released on bail, namely, that in case this contingency arises, the accused, though on bail, shall be deemed to have been taken into custody by the police for the purpose of such recovery or discovery u/s 27 of the Indian Evidence Act. It is also not denied that the accused is at present suffering from some ailment of the heart for which he has beenadmitted in the Snowdon Hospital and is also suffering from diabetes and this is an add itional ground, in my view, for releasing him on bail.

This court, however, at the same time cannot lose sight of the fact that wanton and indiscriminate destruction of forest wealth at the hands of ruthless exploiters, of late, has become a notorious fact which causes not only grievous loss to the nation as a whole but also ecological imbalance inviting; fury of nature in different forms like erosion, floods and droughts etc. In these circumstances, I feel that the courts must consider such like offences of serious nature and deal with them sternly in ease of proof thereof. Despite this, however, the balance-has to be maintained between the seriousness of the offence on the one hand and the personal liberty of an accused involved in such like offences on the other, at the stage of investigation. In the instant ease, as per the accusations, purchase of trees in the private sale was with respect to 166 trees only whereas acord�ng to the allegation, as many as 26000 scants were sold in the market worth Rs. 35,51,426. Therfore, it is felt desirable that while allowing this bail applieaton certain conditions be imposed.

In view of the above discussion, I accept the bail application and order that the applicant be released on bail subject to the following conditions :

That he should furnish personal bond in the sum of Rs. 30,000/- with one surety in the like amount to the satisfaction of the learned Sessions Judge (Speical Judge), Shimla for his presence during the course of the trial of the case ;

that he shall join the investigation as and when called upon to do so by the Investigating Officer;

that he shall not hold out any threat, promise, or inducement to the prosecution witnesses nor will he tamper with the prosecution evidence in any manner whatsoever nor in any other way hamper the investigation of the case;

that if at any stage during the investigation of the case, it is found desirable by the investigating agency that some recovery or discovery has to be effected in connection with this case at the instance of the accused u/s 27 of the Indian Evidence Act, he shall be deemed to have been taken into custody by the police for this limited purpose and in such a case the police will not handcuff or fetter him in any manner even for the limited period.

that he will not leave the territorial limits of the State of Himachal Pradesh without the prior permission of the Sessions Judge (Special Judge), Shimla.

Dasti copy on usual terms.