Delhi High Court
Nilesh Kumar Shah vs Sh. R.C. Khundra Inspector ... on 10 November, 1998
Bench: D Jain
ORDER
Crl. M (M) No. 2793/98
1. By this petition under Section 439 read with Section 482 Cr.PC, the petitioner prays for regular bail. The petitioner is facing trial under Sections 132/135 of the Customs Act, 1962 (for short the Act). The petitioner was arrested on 21st January, 1998 and continues to be in incarceration since then, except for a period of 24 days, when he was granted interim bail on two occasions.
2. It is submitted by Mr. D.C. Mathur, learned senior counsel for the petitioner, that admittedly the petitioner is merely an employee in the companies which were managed by one Mahesh Thakkar but even though the said companies have been arrayed as co-accused but for the reasons best known to the Customs, the said Mahesh Thakkar has not been named in the complaint; the complaint filed against the petitioner is itself bad on the face of it inasmuch as it does not spell out as to whether the petitioner is being prosecuted for an offence under Section 135(1)(a) or 135(1)(b) of the Act; offences under both the said provisions being distinct, it was incumbent upon the complainant to clearly state under what provision he was being
prosecuted; though as per the averments made in the complaint and the reply filed in this petition, investigations were incomplete but still the complaint was filed against the petitioner and three companies with a mala fide intention to deprive the petitioner the benefit of Section 167 (2) Cr.PC; insofar as the present petitioner is concerned, he has already been examined under Section 108 of the Act and, therefore, there is no possibility of his tampering with the evidence and the petitioner being a permanent resident of Rajkot there is no cause to suspect that he will abscond and flee from justice. It is thus pleaded that the petitioner deserves to be granted bail.
3. A reply to the petition has been filed on behalf of the Customs wherein grant of bail to the petitioner is opposed. The petition is mainly resisted on the ground that the petitioner is involved in an economic offence, which is very grave in nature. Though in the reply it has been alleged that if the petitioner is admitted to bail, investigations may be prejudiced and he is also likely to withhold the appearance of Mahesh Thakker, Vipin Perbanda, Naveen Jain and Ms. Deepali but during the course of arguments Mr. Satish Aggrawala, learned counsel for the Customs, has very fairly stated that having regard to the prevailing circumstances, it may not be possible for the petitioner to withhold their appearance particularly when, as per the information of the Department, Mahesh Thakkar has already left the country. It is, however, reiterated that since the petitioner is accused of committing an economic offence, he should be dealt with sternly.
4. It is true that the petitioner is allegedly involved in an economic offence, which, undoubtedly, is grave but at this stage it is neither proper nor desirable to go into detailed examination of the evidence, which may be available against the petitioner and prejudice the trial. Bearing in mind the fact that even if the case made out against the petitioner is ultimately proved still he may be visited with imprisonment for a maximum period of three years or fine or both and that almost the entire case of the prosecution is based on the documentary evidence, which, in all probability, must be in the possession of the prosecution and thus, there cannot be any possibility of his tampering with the evidence if released, I feel that it is a fit case for grant of bail to the petitioner, who, except for a short period of about 24 days, has already been in incarceration for over nine months.
5. Accordingly, it is directed that the petitioner will be admitted to bail on his furnishing a personal bond in the sum of Rs. 1 lakh with one sound local surety in the like amount to the satisfaction of the trial court subject to the further conditions that he will surrender his passport, if he possesses it and has not already surrendered the same; he will not leave the country without prior permission of the trial court; he will intimate his place of residence to the Customs authorities and shall not change the same without prior intimation to them and unless exempted he shall attend all the hearings before the trial court.
6. Before parting, I am constrained to observe that though in a complaint filed by a public servant in the discharge of his official duties the court need not examine the complainant before taking cognizance but even in such a complaint, before taking cognizance the court is required to apply its mind to see whether on the basis of the allegations in the complaint and the evidence, which may be placed before it by the prosecution in support thereof, a prima facie case for taking cognizance and summoning the accused is made out or not. It is not supposed to act merely as a post office or a rubber stamp for the prosecution. Of late it has come to the notice of this Court that some of the subordinate Courts are taking cognizance in the complaints filed by the public servants in a routine manner. This cannot be said to be a proper exercise of discretion vested in the Court under Section 200 Cr.PC. I need not say more.
7. The petition stands disposed of.
Dasti.
