Wasim Ahmmad vs State Of Himachal Pradesh

Sandeep Sharma, J

By way of instant bail petition filed under Section 439 Cr.P.C, prayer has been made on behalf of the bail petitioner namely, Wasim Ahmmad, for grant of regular bail in case FIR No.72/2019, dated 3.10.2019, under Sections 420, 406, 504, 506 and 120­B of the IPC, registered at CID, police Station, Bharari, Shimla, Himachal Pradesh.

Perusal of status report filed on the basis of the investigation carried out by the Investigating Agency, reveals that FIR, detailed hereinabove, came to be lodged at the behest of the complainant, Rajiv Ranta, who alleged that in the month of September, 2019, persons namely Wasim Ahmed (petitioner), Yusuf Pathan and Salim Mohamad purchased 11 trucks of apple boxes (8381 boxes) for total consideration of Rs. 1, 11, 40, 062/­, but till date only a sum of Rs. 61,00,000/­ has been remitted in his saving bank account. Complainant alleged that since despite repeated requests, all the three persons named hereinabove are not coming forward to make balance payment, as such, appropriate action in accordance with law be taken against them.

Pursuant to aforesaid report /complaint made by the complainant, police arrested all the above persons named hereinabvoe from the State of Maharashtra, however fact remains that two persons namely, Yusuf Pathan and Mohamad Salim stand released on bail vide judgments dated 18th June, 2020 passed by this Court in Cr.MP(M) No.749 of 2020 and Cr.MP(M) No.753 of 2020, but present bail petitioner Wasim Ahmed is behind the bars for the last more then six months.

Mr. Arvind Sharma, learned Additional Advocate General though fairly admitted that challan stands filed in the competent court of law, but contended that since huge sum of Rs. 42, 00,000/­ remains to be recovered from the bail petitioner as well as other co­accused, it may not be in the interest of justice to enlarge the bail petitioner on bail at this stage because in the event of his being enlarged on bail, there is every likelihood of his fleeing from justice since he hails from the State of Maharashtra. While admitting the factum with regard to grant of bail to other co­ accused namely, Yusuf Pathan and Salim Mohamad, learned Additional Advocate General contends that since bail petitioner alongwith co­accused had been evading their arrest, it would be difficult for the Investigating Agency to secure his presence during the trial and as such, prayer made on his behalf for grant of bail may kindly be rejected.

Having heard learned counsel representing the parties and perused the material available on record, this Court finds that approximately sum of Rs 61,00,000/­ stands repaid to the complainant and as of today sum of Rs. 42,00,000/­ is yet to be recovered from the petitioner and other two co­accused named hereinabove. Complainant in his complaint has alleged that he sold 11 trucks of apple boxes to the bail petitioner and other co­ accused for total consideration of Rs. 1, 11, 40,062/­, but such fact is yet to be proved in accordance with law by the complainant before the competent court of law. No doubt, in the case at hand sum of Rs. 61,00,000/­ stands deposited in the saving bank account of the bail petitioner, but there is nothing to suggest that sum of Rs. 1, 11, 40,062/­ was to be paid by three persons including the bail petitioner in equal installments. Similarly, there is no material suggestive of the fact that there was understanding inter se complainant and three persons named hereinabove that sum of Rs. 1, 11, 40,062/­ would be paid by three persons separately in three equal installments, hence, learned counsel representing the petitioner is right in contending that one individual cannot be held liable to pay the entire amount of consideration. It is not in dispute that in another bail petition bearing Cr.MP(M) NO.749 of 2020, it has been fairly admitted by the Investigating Officer that complainant Rajiv Ranta has executed an affidavit as well as receipt to the effect that nothing is payable by co­accused Yusuf Khan, but it is not understood that on what basis such affidavit and receipt came to be executed at the behest of the complainant because sum of Rs. 1, 11, 40,062/­ , if any, is/was to be paid jointly by three of the accused including the present bail petitioner. Leaving everything aside, this Court having taken note of nature of transaction cannot lose sight of the fact that the dispute inter se complainant and the bail petitioner is purely civil in nature as such, criminal proceedings initiated at the behest of the complainant definitely cannot be allowed to be used to coerce the bail petitioner to pay certain amount, which is yet to be determined.

Though the aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence collected on record by the investigating agency but having taken note of the aforesaid glaring aspects of the matter,this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when he has already suffered for more than six months. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions. Otherwise also, Hon'ble Apex Court and this Court, in a catena of judgments have held that a person is deemed to be innocent, till the time, his/her guilt is proved in accordance with law. Moreover, balance amount, if any, cannot be realized from the bail petitioner by keeping him behind the bars, rather, it would be in the interest of both, complainant and the bail petitioner, that the bail petitioner is enlarged on bail, so that he is able to arrange for the balance payment, if any.

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 held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under:­

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 first­time 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 Re­Inhuman Conditions in 1382 Prisons.

In Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49, Hon'ble Apex Court has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that 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.

Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

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.e. prima facie case against the accused, nature and gravity of offence, severity of punishment, likelihood of repeating of the offence by accused etc.

In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.10,00,000/­ with one local surety in the like amount, to the satisfaction of the Magistrate available at the station, besides the 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 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 surrender passport, if any held by him.

It is clarified that if the petitioner misuses his 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 bail petition stands disposed of accordingly.