Saheed Safeeq vs Unknown
2022 Latest Caselaw 87 HP

    IN    THE      HIGH     COURT        OF    HIMACHAL           PRADESH,            SHIMLA




                                                                       .
                        ON THE 5th      DAY OF JANUARY, 2022





                                   BEFORE
                     HON'BLE MR. JUSTICE SANDEEP SHARMA





                CRIMINAL MISC. PETITION (MAIN) No.2455 of 2021
          Between:

          SAHEED SAFEEQ,
          S/O LATE SHAFEEQ BAGWAN,





          R/O LATE NO.5, QUAISAR COLONY,
          AURANGABAD, MAHARASHTRA,
          AGED 35 YEARS.
                                                                           ....PETITIONER

          (BY MR. AJAY KOCHHAR AND
          MR. VIVEK SHARMA, ADVOCATES)

          AND


          STATE OF HIMACHAL PRADESH.
                                                                          ....RESPONDENT
          (MR. SUDHIR BHATNAGAR,
          AND MR. ARVIND SHARMA




          ADDITIONAL ADVOCATES GEENRAL
          WITH MR. NARENDER THAKUR,





          AND MR. GAURAV SHARMA,
          DEPUTY ADVOCATES GENERAL)

    Whether approved for reporting?.





    This petition coming on for orders this day, the Court passed the following:

                                          ORDER

Bail Petitioner Saheed Shafeeq, who is in custody since

28.10.2021, has approached this Court in the instant proceedings, filed

under Section 439 Cr.PC., for grant of regular bail in case FIR No. 107 of

.

2021 dated 24.10.2021, registered at PS Rohru, District Shimla, under

Sections 406, 420 and 506 of IPC.

2. Pursuant to order dated 4.1.2022, HC. Rajender and C. Vikram

Singh, Sub Jail Kaithu, Shimla, have caused the presence of the bail

petitioner before this Court. SI Ram Swaroop, I.O., PS Rohru, District

Shimla, H.P., is also present with the records. Records perused and

returned.

3. Close rscrutiny of record/status report reveals that on

24.10.2021, persons namely Virender Thakur, Parmod and Jagmohan

lodged a complaint at PS Rohru, District Shimla, alleging therein that they

are commission agents and in the apple season-2021, had sold 6638 apple

boxes to the present bail petitioner Saheed Shafeeq, who is the proprietor of

Saifu Bagwan Aurangabad, for a total consideration of Rs. 82,37,210/- but

till date, no money has been repaid. On the basis of aforesaid complaint,

FIR detailed herein above came to be lodged against the bail petitioner on

24.10.2021 and since 28.10.2021, proprietor of Saifu Bagwan Aurangabad

i.e. bail petitioner is behind the bars. Since investigation in the case is

complete and challan stands filed in the competent court of law, prayer has

been made by the petitioner for grant of regular bail.

4. Mr. Sudhir Bhatnagar, learned Additional Advocate General,

.

while fairly admitting factum with regard to filing of challan in the

competent court of law submits that since despite repeated assurances,

bail petitioner has not made the complete payment till date, he does not

deserve any leniency and as such, prayer made on behalf of the petitioner

for grant of bail deserves to be rejected. While referring to the status

report/record, Mr. Bhatnagar, states that out of total sum of Rs. 82.00 lac,

sum of Rs. 32.00 lac has been paid/returned and in case petitioner is

ordered to be enlarged on bail, he being an outsider may not only flee from

justice, but may also temper with the prosecution evidence and as such, it

would not be in the interest of justice to enlarge him on bail. Mr.

Bhatnagar, further submits that apart from the case at hand, there are

number of cases registered against the petitioner of similar nature in

different police stations.

5. Having heard learned counsel for the parties and perused

material available on this record, this Court finds that complainants named

herein above, lodged a complaint at PS Rohru that in apple season-2021,

they had sold approximately 6638 apple boxes for total sum of Rs. 82.00

lac approximately, and out of that, only sum of Rs. 32.00 lac has been

received by them. Though during investigation, police has taken into

custody the builties/vouchers allegedly made by the bail petitioner being

.

proprietor of Saifu Bagwan Aurangabad, to demonstrate that 6638 apple

boxes were sold by the complainants to the bail petitioner for further selling

the same in the market, but that may not be sufficient to conclude guilt, if

any, of the bail petitioner because such fact is required to be proved in

accordance with law by leading cogent and convincing evidence. Moreover,

dispute inter-se complainants and bail petitioner is purely civil in nature,

which cannot be settled in the criminal proceedings. The question "whether

there was any agreement inter-se the complainants and the bail petitioner

for sale and purchase of apple boxes and whether in terms of such

agreement, some amount was paid or was agreed to be paid", can only be

determined in appropriate proceedings, but definitely not in criminal

proceedings. By now it is well settled that dispute, which is civil in nature

cannot be decided in criminal proceedings.

6. Leaving everything aside, this Court finds that after lodging of

FIR, bail petitioner besides making payment of Rs. 32.00 lac has already

entered into agreement with the complainants, whereby he with a view to

show his banafides not only transferred some amount through RTGS, but

has also issued post dated cheques. This Court with a view to verify the

factum with regard to aforesaid agreement arrived inter-se parties

specifically directed the Investigating Officer to ascertain the aforesaid

.

factum from the complainants.

7. Today during the proceedings of the case, investigating officer

fairly stated that bail petitioner apart from paying 32.00 lac has also issued

post dated cheques in favour of the complainants and he has also made

certain payments through RTGS. Once complainants have entered into

compromise, whereby they have agreed to receive due amount by way of

cheques or in installments, no fruitful purpose would be served by keeping

the bail petitioner behind the bars for indefinite period during trial.

Otherwise also money, if any, can be given by the bail petitioner by

arranging the same from the market since he after having purchased the

apple crop from the complainants had sold the same in the market. If the

bail petitioner is ordered to be enlarged on bail, then only, he can collect

the money from the market. Once challan stands filed in the competent

court of law, bail cannot be denied to the bail petitioner on the ground that

money is yet to be recovered from him. Since there is a dispute with regard

to quantum of amount, if any, payable by the bail petitioner to the

complainants, prayer made on his behalf cannot be rejected on the ground

that he has not made the complete payment. Forcing the bail petitioner to

make the complete payment, at this stage, would virtually amount to

compelling him to concede that he owes amount to the complainants as is

.

being claimed by them. Incarceration of the bail petitioner during the

pendency of the trial would amount to pre-trial conviction, which otherwise

is not permissible in law. Though case at hand shall be decided by the

court below in totality of evidence collected on record by the investigating

agency, but having taken note of the aforesaid glaring aspect of the matter,

this court sees no reason to let the bail petitioner incarcerate in jail

indefinitely during trial. Hon'ble Apex Court as well as this Court in catena

of cases have repeatedly held that one is deemed to be innocent till the time

guilt, if any, of his/her is not proved in accordance with law. In the case at

hand also, guilt, if any, of the accused is yet to be proved in accordance

with law, by leading cogent and convincing material on record.

Apprehension expressed by the learned Additional Advocate General that in

the event of petitioner's being enlarged on bail, he may flee from justice,

can be best met by putting the bail petitioner to stringent conditions as has

been fairly stated by the learned counsel for the petitioner.

8. 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.

9. 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. 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. 10,00,000/- with two local 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 the passport, if any, to the investigating agency.

15. 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.

16. 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.

    5th January, 2022                                     (Sandeep Sharma),

          (manjit)                                             Judge