Ramesh Singh vs State Of Himachal Pradesh

Sandeep Sharma, J

Through Video Conferencing

Bail petitioner namely Ramesh Singh, who is behind the bars since December, 2019, has approached this Court in the instant proceedings filed under Section 439 Cr.PC, for grant of regular bail in FIR No. 38/2017 dated 20.05.2017, under Sections 420, 409, 465, 467, 468 & 471 of IPC and Section 13(2) of Prevention of Corruption Act, 1988, registered at Police Station Kala-Amb, Tehsil Nahan, District Sirmour, Himachal Pradesh.

Status report filed in terms of order dated 22.9.2020, reveals that on 19.5.2017, The Administrator Trilokpur Gram Sewa Sehkari Sabha, Tehsil Nahan, District Sirmour, lodged a complaint at Police Station Kala-Amb, District Sirmour, alleging therein that present bail petitioner, who was working as a Secretary in the aforesaid Society, in connivance with Assistant Secretary, Vishal, misappropriated a sum of Rs. 2,47,94,592.7 . Complainant alleged that the bail petitioner had been working in the Society since 1st February, 1984, whereas, co-accused Vishal, Assistant Secretary, was working since 1st April, 2013. As per complainant, bail petitioner in connivance with co-accused unauthorizedly gave loans to members of the Society for sale and purchase of properties. Complainant further disclosed to the Police that the present bail petitioner on account of aforesaid charge, was suspended from the Society w.e.f. 20.03.2017 and as such, appropriate action in accordance with law be taken against him. In the aforesaid background, FIR as detailed hereinabove, came to be lodged against the bail petitioner and since December, 2019, he is behind the bars. During investigation it transpired that bail petitioner in connivance with co-accused, unauthorizedly gave loans to the members of the Society for purchase of properties and thereafter, misappropriated the amount which he had received from the borrowers. During the investigation, police recorded statements of various persons and has furnished list of 118 persons, who after having taken loans from the Society in March 2017, returned the same to the petitioner, who instead of depositing the same in the account of Society, misappropriated the same.

Mr. Kunal Thakur, Learned Deputy Advocate General , while fairly acknowledging the factum with regard to completion of investigation, contends that though, investigation in the case is complete, but since money allegedly misappropriated by the bail petitioner is yet to be recovered, prayer made on his behalf cannot be allowed, at this stage. While making this Court to peruse the status report, Mr. Kunal Thakur, states that there is overwhelming evidence collected on record by Investigating Agency, suggestive of the fact that bail petitioner fraudulently procured pronotes in connivance with co-accused Vishal and misappropriated money of Society, as a consequence of which, innocent depositors have been left in lurch. Mr. Thakur further contends that as per investigation, amount allegedly misappropriated by the bail petitioner has been invested by him in the State of Haryana, where he has allegedly indulged in 'benami' transactions. Lastly, Mr. Kunal Thakur, contends that since evidence in the case is yet to be commenced and statements of material prosecution witnesses are yet to be recorded, it would not be in the interest of justice to enlarge the bail petitioner on bail, who in the event of his being enlarged on bail, may not only flee from justice, rather, may make attempts to tamper with the prosecution evidence and as such his prayer for grant of bail may not be accepted.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that prior to filing of the petition at hand, petitioner had earlier approached this Court by way of filing Cr.MPM No.395 of 2020. But same was dismissed as withdrawn vide order dated 3rd July, 2020, but since, no headway has been made in the trial, petitioner has again approached this Court in the changed circumstances.

Status report though suggests that petitioner during his stint as Secretary of the Society concerned, misappropriated the huge amount of Society in connivance with co-accused Vishal, but such allegation is yet to be proved in accordance with law by Investigating Agency by leading cogent and convincing evidence. As per Investigating Agency, the bail petitioner, firstly unauthorizedly granted loan to the members of the Society for purchase of properties and thereafter failed to deposit the same in the account of the Society after its receipt from the borrowers. As per Investigating Agency, bail petitioner taking undue advantage of innocence of some of poor persons, fraudulently prepared pronotes and thereafter, prepared loan cases in the names of the persons, who at no point of time, had applied for the loan.

True it is, that allegations as have been leveled against the petitioner, are serious in nature, but same are yet to be proved in accordance with law. Mere allegations of misappropriation or misutilization are not sufficient to conclude complicity, if any, of the petitioner, rather same are required to be proved in accordance with law by leading cogent and convincing evidence. Petitioner is behind the bars for almost 11 months and till date, charge has not been framed. Though, learned Deputy Advocate General has contended that in the event of petitioner being enlarged on bail, he may tamper with prosecution witnesses, but such apprehension appears to be totally misplaced because as per status report entire record pertaining to Society stands confiscated/seized by Investigating Agency.

No doubt, statements of material prosecution witnesses are yet to be recorded, but that cannot be a ground to reject the prayer made on behalf of the petitioner for grant of bail, especially, when no material worth credence has been led on record suggestive of the fact that in the event of petitioner being enlarged on bail, he may dissuade prosecution witnesses from deposing against him, rather in the case at hand, material prosecution witness is the complainant himself, at whose behest FIR came to be lodged and as such, it would be premature to conclude at this stage, that in the event of petitioner being enlarged on bail, he may hamper/tamper with the evidence. Otherwise also Hon'ble Apex Court and this Court have held in catena of judgments that one is deemed to be innocent until guilt, if any, of him/her is not proved in accordance with law and as such, this Court cannot let the bail petitioner incarcerate in jail for indefinite period during the trial, especially, when he has already suffered more than 11 months. As has been taken note herein above, more than 3 years have passed after lodging of FIR, but till date, charge has been not framed and as such, this Court can presume that trial of the accused, which has already been delayed, would be further delayed on account of prevailing conditions in the wake of COVID-19 and as such, there appears to be no justification to keep the bail petitioner behind the bars for indefinite period during the trial. Otherwise also, investigation in this case is complete and nothing remains to be recovered from the bail petitioner. Though, in the case at hand, the plea of Investigating Agency is that since sum of Rs. 2,47,94,592.7 allegedly misappropriated by the petitioner, is yet to be recovered, he cannot be granted bail. But since petitioner has denied the aforesaid factum of misappropriation and there is no material available on record suggestive of the fact that during investigation, Investigating Agency was able to recover any amount or find out properties, if any, purchased by the petitioner in State of H.P or Haryana, as such, this court is of the view that on account of non-recovery of misappropriated money, prayer made on behalf of the petitioner cannot be rejected.

Similarly, it is not in dispute that petitioner is a local resident of area and he has deep roots in Society, and as such, it can be believed/presumed that petitioner would be always available for investigation/trial as and when called by the Investigating Agency. Apprehension expressed by learned Deputy Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting him to the stringent conditions, as has been fairly stated by learned counsel representing the petitioner.

The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:-

" The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson."

In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC 218, The Hon'ble Apex Court has held as under:-

" This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted."

The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, relevant para whereof has been reproduced herein below:-

"11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).

Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon'ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon'ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under:

"2. 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. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.

To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.

In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to his furnishing personal bond in the sum of Rs. 5,00,000/- with two sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:

(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) He shall not make any inducement, threat or promises 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

(d) He shall not leave the territory of India without the prior permission of the Court.

(e) He shall handover passport to the Investigating Agency.

(f) He shall make himself available in the concerned police station i.e. Kala-Amb, Tehsil Nahan, District Sirmour, H.P. twice a week at 11:00AM sharp.

It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.

Copy dasti.