Himachal Pradesh High Court
Between vs Unknown on 15 December, 2021
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
.
ON THE 15th DAY OF DECEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SANDEEP SHARMA
1. CRIMINAL MISC. PETITION (MAIN) No.2272 of 2019
Between:
PREM PRAKASH,
S/O LATE SH. BISHAN DASS,
R/O VILLAGE NOON,
P.O.KHUNNI,
TEHSIL KUMARSAIN,
DISTRICT SHIMLA, H.P.
AGED ABOUT 43 YEARS.
....PETITIONER
(BY MR. MANOJ PATHAK,
ADVOCATE)
AND
STATE OF HP
....RESPONDENT
(BY MR. SUDHIR BHATNAGAR,
ADDITIONAL ADVOCATE GENERAL
WITH MR. GAURAV SHARMA AND
MR. NARENDER THAKUR,
DEPUTY ADVOCATES GENERAL)
2. CRIMINAL MISC. PETITION (MAIN) No.2274 of 2019
Between:
ASHWANI KUMAR SHARMA,
S/O SH. GODAR MAL,
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AGED 56 YEARS,
.
RESIDENT OF VILLAGE JAVERI,
PO JAWARA, TEHSIL KAMA,
DISTRICT BHARATPUR,
RAJASTHAN, THROUGH HIS
BROTHER JAGDISH KUMAR SHARMA
....PETITIONER
(BY MR. JYOTIRMAY BHATT,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
....RESPONDENT
(BY MR. SUDHIR BHATNAGAR,
ADDITIONAL ADVOCATE GENERAL
WITH MR. GAURAV SHARMA AND
MR. NARENDER THAKUR,
DEPUTY ADVOCATES GENERAL)
3. CRIMINAL MISC. PETITION (MAIN) No.2364 of 2019
Between:
RANJEET,
S/O LATE SH. SURAT RAM,
R/O VILLAGE ADDU, P.O. DHANAWALI,
TEHSIL NANKHARI,
DISTRICT SHIMLA, H.P.
PRESENTLY LODGED IN DISTRICT JAIL,
KAITHU, SHIMLA, H.P.
....PETITIONER
(BY MR. SUNEET GOEL,
ADVOCATE)
AND
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.
STATE OF HP
....RESPONDENT
(BY MR. SUDHIR BHATNAGAR,
ADDITIONAL ADVOCATE GENERAL
WITH MR. GAURAV SHARMA AND
MR. NARENDER THAKUR,
DEPUTY ADVOCATES GENERAL)
Whether approved for reporting?.
These petitions coming on for orders this day, the Court passed the following:
ORDER
By way of instant bail petitions filed under Section 439 of
Cr.PC., prayer has been made by the petitioners for grant of regular bail in
case FIR No. 74 of 2019 dated 23.10.2019, registered at PS State CID
Bharari, Shimla, HP., under Sections 406, 420, 504 and 506 read with
Section 120 of the IPC. Pursuant to order dated 8.11.2021, investigating
agency has filed the fresh status report. Inspector/SHO Ramanand
Chauhan and ASI/SHO Ramesh Chand, PS CID, Bharari, are present in
person alongwith records. Record perused and returned.
2. Close scrutiny of the status report as well as record made
available to this Court reveals that on 12.12.2019, person namely Prakash
Chand, lodged a complaint with CID Bharari, Shimla, alleging therein that
the bail petitioners named herein above, are the partners of M/s Vaibhav
Fruit Co., which had been purchasing apple crop from the orchardists,
District Shimla, for the last 4-5 years. Complainant alleged that the above
.
named fruit company purchased thousands of apple boxes from the
orchardists, but till date, they have not paid them their due. During the
pendency of the aforesaid complaint, many other orchardists also lodged
complaint with CID Bharari against the bail petitioners and as such, FIR
detailed herein above, came to be lodged against the bail petitioners. After
registration of the case, all the bail petitioners were taken into custody and
as such, they approached this Court in the instant proceedings for grant of
regular bail.
3. During investigation, it transpired that 73606 boxes were
purchased by the bail petitioners from the different orchardists in the year
2019-20. All the apple boxes purchased by the petitioners were sent to
various parts of the country and sum of Rs. 7,16,74,680/- was allegedly
received by them in their bank accounts from different agents across the
country, but they failed to make the payment to the orchardists. On
18.12.2019, this Court having taken note of the fact that substantial
amount stands paid to the orchardists, enlarged all the bail petitioners on
interim bail, enabling them to make arrangements for the balance money.
After 18.12.2019, matter repeatedly came to be adjourned on the request of
the bail petitioners. On 8.11.2021, this Court was informed by the
investigating agency that till 31.10.2021, all the petitioners have paid sum
.
of Rs. 1,71,00,000/- but sum of Rs. 1,45,00,000/- is yet to be paid and as
such, this court adjourned the matter for today's date, enabling the
petitioners to make arrangement for balance payment.
4. Today, during the proceedings of the case, fresh status report
has been filed, perusal whereof reveals that as of today, sum of Rs.
2,02,00,000/- stands deposited/paid to the various orchardists and sum of
Rs. 1,45,00,000/- is yet to be paid. As per investigating agency, all the bail
petitioners except bail petitioner Ashwani Sharma, joined the investigation
and deposited some amount.
5. Mr. Jyotirmay Bhatt, learned counsel representing the bail
petitioner namely Ashwani Sharma, seriously disputed the aforesaid
allegation of not joining of the investigation by the bail petitioner Ashwani
Sharma. He submits that though on few days, bail petitioner was unable to
come present on account of compelling circumstances, but such fact was
brought to the notice of the investigating agency in advance. Bail petitioner
Ashwani Sharma, who is present in the Court, states that though entire
amount falling in his share stands paid but yet efforts are being made by
him to ensure payment of balance amount, if any. Learned counsel
appearing for the bail petitioners, vehemently argued that since substantial
amount already stands paid to the orchardists, prayer having been made
.
on their behalf for grant of regular bail, deserves to be allowed.
6. Mr. Sudhir Bhatnagar, learned Additional Advocate General,
while opposing the aforesaid prayer made on behalf of the petitioners
contends that repeatedly, bail petitioners have failed to honour their
commitment given to this Court and as such, it may not be in the interest
of justice, to enlarge them on bail at this stage, who in the event of their
being enlarged on bail, may not only flee from justice, but may also temper
with the prosecution evidence.
7. Having heard learned counsel for the parties and perused
material available on this record, this Court finds that dispute inter-se
complainant and the bail petitioners herein is with regard to the payment of
the apple boxes allegedly purchased by the bail petitioners in the year
2019/2020. Though, as per investigation, sum of Rs. 3,16,00,000/- in
total, was to be paid by the bail petitioners and out of that, sum of Rs.
2,02,00,000/- already stands repaid, but at present juncture, dispute
appears to be inter-se the bail petitioners with regard to the extent of their
liability. None of the bail petitioners have disputed their liability before this
Court, but their claim is that they have already paid their shares.
Moreover, this Court finds that the bail petitioners in majority of cases have
already issued post dated cheques, which have been dishonoured and
.
cases under Section 138 of the Negotiable Instruments Act are pending in
the competent courts of law in various parts of the State. Having taken
note of the fact that during the pendency of the present bail petitions,
substantial amount stands paid to the orchardists, coupled with the fact
that all the bail petitioners present in the court have undertaken before this
Court to pay sum of Rs.5.00 lac each, within a period of two weeks, this
Court deems it fit to consider the prayer made by the bail petitioners for
grant of regular bail.
8. No doubt, challan in the case at hand is yet to be filed, but
freedom of the bail petitioners cannot be curtailed for an indefinite period,
especially, when they have repeatedly made themselves available for
investigation as and when asked by the investigating agency. Though
investigating agency has claimed that recovery of full amount is yet to be
effected, but that cannot be ground to deny the bail for the reason that
there is a dispute inter-se bail petitioners qua the extent of their liability.
Otherwise also, to determine the extent of liability, record maintained by
the firm: i.e. M/s Vaibhav Fruit Agency is required to be scanned, which
definitely cannot be done in the instant proceedings. Apprehension
expressed by learned Additional Advocate General that in the event of bail
petitioners being enlarged on bail, they may flee from justice or may again
.
indulge in such activities, can be best met by putting bail petitioners to
stringent conditions.
9. 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.
10. 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."
10. 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."
11. 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.
12. 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).
13. 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.
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.
14. Consequently, in view of the above, afore petitions are allowed
and order dated 8.11.2021, passed by this Court, is made absolute and the
petitioners are ordered to be enlarged on bail in aforesaid FIR, subject to
their furnishing fresh personal bonds in the sum of Rs. 5,00,000/- with two
local sureties in the like amount to the satisfaction of concerned Chief
Judicial Magistrate/trial Court, with following conditions:
a. They shall make themselves 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. They shall not tamper with the prosecution evidence nor hamper the
investigation of the case in any manner whatsoever;
c. They 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. They shall not leave the territory of India without the prior permission of
the Court.
e. They shall handover passport if any, to the investigating agency.
15. It is clarified that if the petitioners misuse their liberty or
violate any of the conditions imposed upon them, the investigating agency
shall be free to move this Court for cancellation of the bail.
16. Any observations made hereinabove shall not be construed to
.
be a reflection on the merits of the main case and shall remain confined to
the disposal of these applications alone.
The bail petitions stand disposed of accordingly.
Copy Dasti.
15th December, 2021 (Sandeep Sharma),
(manjit) Judge
