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Object of bail is to secure the presence of accused Anticipatory bail granted

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 144 of 2018
Date of Decision No.13.4.2018

Rakesh Kumar Kaushal …….. Petitioner
Versus
State of Himachal Pradesh …..Respondent.

Coram:Hon’ble Mr. Justice Sandeep Sharma, Judge.

Whether approved for reporting?

For the petitioner: Mr. T.S.Chauhan, Advocate.
For the respondent: Mr. Ashok Sharma, Advocate General,with Mr. Dinesh Thakur, Additional Advocate General, and Mr. Vikrant Chandel, Deputy Advocate General.

Sandeep Sharma, Judge (oral):

Bail petitioner, namely Rakesh Kumar Kaushal, apprehending his arrest, has approached this Court for grant of anticipatory bail in case FIR No. 51 of 2018, dated 15.02.2018, under Sections 420, 406 of Indian Penal Code and Sections 3 7 of Essential Commodities Act, 1955, registered at Police Station, Haroli, District Una, Himachal Pradesh.

2. Sequel to order dated 23.03.2018, ASI Shiv Parkash, police Station, Haroli, District Una, Himachal Pradesh, has come present in Court alongwith the record of the case. Mr. Ashok Sharma, learned Advocate General, has placed on record status report prepared on the basis of the investigation carried out by the investigating agency. Record perused and returned.

3. Mr. Ashok Sharma, learned Advocate General, on the instructions of the Investigating Officer, who is present in Court, though fairly admitted that entire stock of wheat/flour stands handed over to the Officials of the Food and Civil Supply Corporation, but stated that petitioner is not fully co-operating in the investigation because till date he has failed to disclose the names of other persons involved in the crime allegedly committed by him and as such, his custodial interrogation is required.

4. Mr. T.S.Chauhan, learned counsel representing the bail petitioner, while refuting the aforesaid submission having been made by learned Advocate General, contended that bail petitioner is fully cooperating with the investigating agency and all the orders passed by this Court have been duly complied with. He further contended that since entire stock i.e. 6744 quintals of wheat/flour stands recovered by the respondent-State and as such, there is no occasion for the custodial interrogation of the bail petitioner. Mr. Chauhan, further contended that since no other person, as alleged by the respondent-State, is involved in the present case, there is no occasion for the present petitioner to disclose the name of other persons. He further stated that petitioner shall be rendering all necessary assistance/co-operation to the investigating agency during the investigation. Lastly, Mr. Chauhan, contended that bail petitioner is a reputed person of the area and has sufficient movable and immovable property and there is no likelihood of his fleeing from justice and he shall make himself available for investigation and trial as and when called by the investigating agency.

5. After having heard learned counsel representing the parties and perused the record, it is quite apparent that bail petitioner has complied with the order dated 23.3.2018, passed by this Court, whereby he was directed to hand over 6744 quintals of wheat/flour to the officials of the State Civil Supply Corporation. As has been noticed hereinabove, Mr. Ashok Sharma, learned Advocate General, has fairly admitted the factum with regard to handing over of the stock, referred hereinabove, and as such, this Court finds no reason for custodial interrogation of the bail petitioner. Guilt, if any, of the bail petitioner is yet to be proved, in accordance with law and as such, freedom of an individual, who has otherwise made available complete stock to the respondentState, cannot be allowed to be curtailed.

6. 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 freedom of an individual is of utmost importance and same cannot be curtailed merely on the basis of suspicion. Hon’ble Apex Court has further held that till the time guilt of accused is not proved, in accordance with law, he is deemed to be innocent. The relevant paras No.2 to 5 of the 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.

3. 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.

4. 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.

5. 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.

7. 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.

8. 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.”

9. 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.

10. 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).

11. Consequently, in view of the above, order dated 16.02.2018, passed by this Court, is made absolute, subject to 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 him 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.

12. 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. 13. 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.

Copy dasti.

(Sandeep Sharma),
Judge
13th April, 2018 (shankar)

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