Rajesh Kumar vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, who is under incarceration from July 15, 2019, i.e. exactly for a year, for having been arrested for committing financial fraud has come up before this Court, seeking regular bail.

Based on a First Information Report (FIR), the police arrested the petitioner on 15.07.2019, in FIR No.27/19, dated 16.03.2019, registered under Sections 420, 406, 409, 467, 468 & 120-B of Indian Penal Code, 1860, (IPC) and, in Police Station, Talai, District Bilaspur, Himachal Pradesh, disclosing cognizable and non-bailable offences.

Earlier, the petitioner filed a petition under Section 439 CrPC before Sessions Judge, Bilaspur, HP. However, vide order dated 17.3.2020, the Court dismissed the petition, primarily because the amount involved is huge.

I have read the status report(s) and heard Mr. B.S. Chauhan, learned Senior Advocate assisted by Mr. Munish Datwalia, Advocate for the Petitioner, and Mr. Nand Lal Thakur, learmed Additional Advocate General for the State.

FACTS:

Briefly, the allegations against the petitioner and other co-accused are forging of signatures and disbursing the loan to fictitious persons in connivance with other persons of the society. In all the police has filed the report under Section 173(2) Cr. P.C., agaisnt 13 persons including the petitioner herein. The petitioner was allegedly working as Secretary of Gram Sewa Sehkari Sabha Simit, Talai, District Bilaspur. During the audit report 2017 -18, various financial irregularities were detected, which led in registration of FIR.

PREVIOUS CRIMINAL HISTORY

The counsel for the petitioner states that the accused has no criminal history.

SUBMISSIONS:

The learned counsel for the bail petitioner submits that the allegations are false and concocted. He, on instructions, further contends that except three all other accused stand released on bail.

On the contrary, Mr. Nand Lal Thakur, Additional Advocate General, contended that the Petitioner was the mastermind and Police has collected sufficient prima facie evidence. He further submits that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.

ANALYSIS AND REASONING:

Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with the victim(s) and witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State.

In Gurbaksh Singh Sibbia and others v. State of Punjab, 1980 (2) SCC 565, a Constitutional bench of Supreme Court holds in Para 30, as follows: "It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."

In State of Rajasthan, Jaipur v. Balchand, AIR 1977 SC 2447, Supreme Court holds, 2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the court. We do not intend to be exhaustive but only illustrative.

It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime.

In Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, Supreme Court in Para 16, holds:

"The delicate light of the law favours release unless countered by the negative criteria necessitating that course."

In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, a three -member bench of Supreme Court holds:

"18. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non-bailable offences are entitled for bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing requires that such persons to be released on bail, in spite of his earlier applications being rejected, the courts can do so."

In Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22, Supreme Court holds, 1. 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.

However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

In the present case, out of 13, 10 accused stand released on bail and the petitioner and two other accused are still in judicial custody. One of the bail orders, passed by a coordinate Bench of this Court in Cr.MP(M Nos. 1761 & 1762 of 2019, is placed on record. According to the investigators, the petitioner is one of the main accused. Be that as it may, he has already suffered incarceration exactly one year. Moreover, the bail order does not stop the investigator to conduct further investigation and make recoveries. In case the petitioner does not cooperate, then it shall be open for the investigator to file application for cancellation of present bail.

Mr. Nand Lal Thakur, learned Additional Advocate General contends that the investigation regarding recovery of money from the accounts from where it was illegally transferred and siphoned off, is still continuing. He further contends that the money has been illegally transferred out of India.

Given the above submissions, it is for the investigator to investigate the matter in the light of the provisions contained under Prevention of Money Laundering Act, 2002 and other statutory provisions. It shall also be open for the State to conduct Forensic audit in the affairs of the Society involved in the offence.

A bare perusal of the report under Section 173 Cr.PC reveals that the investigation is incomplete qua these aspects. Needless to say that the State has all rights to conduct further investigation and the bail order does not stop the investigator to conduct investigation and make recoveries. The petitioner shall fully cooperate with the investigator about the fact that where the money has gone. If he fails to cooperate truthfully, the State shall be at liberty to seek cancellation of the bail granted on that account alone.

While deciding bail, this Court cannot discuss the evidence threadbare. Without commenting on the merits of the case, the fact that the investigation is almost complete and the accused is in jail for the last one year, coupled with the ongoing situation due to Covid-19 pandemic, would make out a case for bail.

The nature of the offence also does not restrict bail because of the prolonged custody. The possibility of his influencing the course of the investigation, or tampering with evidence (including intimidating witnesses), the likelihood of fleeing justice, can be taken care of by imposing elaborative conditions.

The address of the petitioner is Village Bhagatpur, Tehsil Jhandutta, District Bilaspur, therefore, his presence can be secured.

Further incarceration of the accused during the period of trial is neither warranted, nor justified, or going to achieve any significant purpose.

The report under Section 173(2) CrPC does not restrict the police's powers to investigate further by following the law. Needless to say, that the Prosecution has all the rights of further investigation under S. 173(8) CrPC, following the law.

To ensure that the petitioner does not get an opportunity to tamper with the evidence, while on bail and the Court is putting the stringent conditions and this bail shall be subject to the strict terms.

Given the above reasoning, the Court is granting bail to the petitioner, subject to the imposition of following stringent conditions, which shall be over and above, and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC. Consequently, the present petition is allowed. The petitioner shall be released on bail in the present case, connected with the FIR mentioned above, on his furnishing a personal bond of INR 10,00,000/, (INR Ten lacs only), to the satisfaction of the Trial Court. The petitioner shall also furnish two sureties, each in the like amount, to the satisfaction of the Sessions Court/Special Court/ Chief Judicial Magistrate/Ilaqua Magistrate/Duty Magistrate/the Court, which is exercising jurisdiction over the concerned Police Station where FIR is registered. The furnishing of bail bonds shall be deemed acceptance of all stipulations, terms, and conditions of this bail order:

a) The petitioner to give security to the concerned Court(s)/ Investigating Officer, for attendance on every date, unless exempted, and in case of Appeal, also promise to appear before the higher Court, in terms of Section 437 -A CrPC.

b) The Attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), email (if any), and details of personal bank account(s) (if available).

c) The petitioner shall join investigation as and when called by the Investigating officer or any superior officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The petitioner shall not be subjected to third-degree methods, indecent language, inhuman treatment, etc.

d) The petitioner shall cooperate with the investigation at all further stages as may be required, and, in the event, there is any failure on his part to do so, it will be open for the prosecution to seek cancellation of the bail granted by the present order.

e) The petitioner shall not influence, threaten, browbeat, or pressurize the witnesses and the Police officials.

f) The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.

g) Once the trial begins, the petitioner shall not, in any manner, try to delay the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted, and in case of Appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC.

h) There shall be a presumption of proper service to the petitioner about the date of hearing in the concerned Court, even if it takes place through SMS/ WhatsApp message/ E-Mail/ or any other similar medium, by the Court.

i) In the first instance, the Court shall issue summons and may send such summons through SMS/ WhatsApp message/ E-Mail.

j) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable warrants through SMS/ WhatsApp message/ E-Mail.

k) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non-Bailable warrants to procure the petitioner's presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper.

l) In case of Non-appearance, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse the State shall entitle the trial Court to order the transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.

m) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, within 10 days from such modification, to the police station of this FIR, and also to the concerned Court.

n) The petitioner shall abstain from all criminal activities. If done, then while considering bail in the fresh FIR, the Court shall take into account that even earlier, the Court had cautioned the accused not to do so.

o) During the trial's pendency, if the petitioner commits any offence where the sentence prescribed is seven years or more, then the State may move an appropriate application for cancellation of this bail.

p) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may apply for cancellation of bail of the petitioner. Otherwise, the bail bonds shall continue to remain in force throughout the trial and also after that in terms of Section 437-A of the CrPC.

q) The petitioner shall surrender all firearms along with ammunitions, if any, along with the arms license to the concerned authority within 30 days from today. However, subject to the provisions of the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back, in case of acquittal in this case.

In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even before the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.

The learned counsel representing the accused as well as the officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order to the petitioner, in vernacular.

The petitioner undertakes to comply with all the directions given in this order. Furnishing of bail bonds by the petitioner is the acceptance of all such conditions.

Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on her/his furnishing bail bonds in the terms described above.

This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation in accordance with law.

The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in any other case(s) registered against the petitioner.

30 Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

The Court Master shall handover this order to the concerned branch of the Registry of this Court, and the said official shall immediately send a copy of this order to the District and Sessions Judge, concerned, by e-mail. The Court attesting the bonds shall not insist upon the certified copy of this order and shall download the same from the website of this Court, or accept a copy attested by an Advocate, which shall be sufficient for the record. The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner and the Learned Advocate General if they ask for the same.

The SHO of the concerned Police Station or the Investigating Officer shall send a copy of this order, preferably a soft copy, to the victim, at the earliest.

In return for the freedom curtailed for breaking the law, the Court believes that the accused shall also reciprocate through desirable behavior.

The petition stands allowed in the terms mentioned above. All pending applications, if any, stand closed.