Himachal Pradesh High Court
Vikram Chandel vs State Of Himachal Pradesh on 7 May, 2024
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P. (M) No. 333 of 2024
.
Date of decision: 7.5.2024
Vikram Chandel. ...Petitioner.
Versus
State of Himachal Pradesh. ...Respondent.
Coram
For the Petitioner.
r to
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes.
Mr.Rajesh Kumar, Advocate.
For the Respondent: Mr.Sanjay Dutt Vasudeva, Deputy Advocate
General.
Vivek Singh Thakur, Judge (Oral)
Petitioner has approached this Court for grant of regular bail
under Section 438 of the Code of Criminal Procedure, (in short 'Cr.P.C.') in
case FIR No. 23 of 2021, dated 03.03.2021, registered under Sections 420,
467, 468, 471, 409 and 120-B of the Indian Penal Code in Police Station
East Shimla.
2. Status Report stands filed, wherein it is stated that Shri Navin
Kumar Patial, Branch Manager of State Bank of India, Panthaghati (Shimla),
presented an application to the police, stating therein that on 8.12.2015, co-
accused Jitender Verma and Sanjeev Kumar approached State Bank of
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
Bikaner and Jaipur (now after merger, State Bank of India) and made a
request for grant of Home Loan of Rs.15,00,000/- for purchase of property,
and that request of these co-accused was considered by the Bank and the
.
Bank agreed to grant Home Loan on the terms and conditions as stipulated
in the Sanction Letter. Thereafter, in order to secure the loan, these
accused persons mortgaged their property and deposited original title
document, i.e. Sale Deed, registered vide registration No.2698, vide which
equitable mortgage has been created, and the bank sanctioned the loan
and asked these two persons to execute registered mortgage deed also, on
which they deposited mortgage deed registered vide registration No.8890.
When bank official visited the property, he found that the borrowers had
sold all the flats in the property and same was confirmed by the Bank's
Empanelled Advocate in his title investigation report that said sale deed was
not found registered with Sub Registrar, Shimla.
3. It is stated in the Status Report that the aforesaid two
accused had also approached the aforesaid Bank, on 15.6.2015, and made
a request/applied for grant of Home Loan of Rs.20,00,000/- for
completion/finishing of semifinished house, which was sanctioned on the
terms and conditions mentioned in the Sanction Letter, and for the purpose
supplied and deposited mortgage deed registered in the office of Sub
Registrar Theog, vide Registration No.479, but, on inquiry, the said
mortgage deed was found to be forged and fabricated document.
4. It has been stated that co-accused Sanjay, in connivance with
other accused persons Jitender Verma and Sanjeev Kumar, on 28.12.2016,
approached the aforesaid bank for grant of loan of Rs.20,00,000/- for
.
purchase of entire RCC frame structure of Ground Floor and Parking Floor
of under construction building, which was sanctioned on the terms and
conditions mentioned in the Sanction Letter, and for the purpose co-
accused Sanjay deposited original sale deed with the bank, i.e. Sale Deed
registered in the Office of Sub Registrar Shimla, vide registration No.2580
and also deposited Mortgage Deed registered in the Office of Sub Registrar
Shimla vide Registration No.1625, but, on inquiry, it was found that the
property mentioned in the deeds was not in the name of the borrower and it
was also confirmed on inquiry from office of Patwari.
5. It is further stated in the Status Report that co-accused
Pankaj also, in connivance with co-accused Jitender Verma and Sanjeev
Kumar, approached the aforesaid Bank on 23.2.2017 and applied for grant
of loan of Rs.20,00,000/- for purchase of semi-finished flat, which was
sanctioned on the terms and conditions mentioned in the Sanction Letter,
and for the purpose Pankaj deposited original Sale Deed, i.e. Sale Deed
registered in the office of Sub Registrar Shimla, vide registration No.146
and thereafter also deposited Mortgage Deed, registered in the office of Sub
Registrar Shimla, vide registration No.1676, but, on inquiry by the
Empanelled Advocate of the Bank, it was found that neither the Sale Deed
belonged to Pankaj nor the Mortgage Deed was in existence.
6. It is also stated in the Status Report that co-accused Sanjeev
Kumar had also approached the aforesaid Bank on 20.9.2016, for grant of
Home Loan of Rs.20,00,000/-, which was sanctioned on the terms and
.
conditions mentioned in the Sanction Letter, and for the purpose deposited
original title deed with the Bank, i.e. Sale Deed registered in the Office of
Sub Registrar Solan, vide registration on 2341, and, on inquiry, it was found
that the property mentioned in the deed was not in the name of co-accused
Sanjeev Kumar and that the document was found to have been false,
fabricated and forged, prepared to cheat the Bank.
7. It is stated in the Status Report that the petitioner as well as
other co-accused, in order to cheat the bank of its public money, prepared
false and fabricated documents.
8. On the basis of the aforesaid application/complaint of the
Branch Manager of the State Bank of India, Panthaghati (Shimla), FIR in
question has been registered.
9. During investigation it surfaced that in a forged sale deed No.
2341, dated 21.9.2016, petitioner Vikram Chandel was seller, whereas
Sanjeev Kumar, S/o Daulat Ram was purchaser and on the basis of this
forged sale deed and bankers cheque No. 433318 of State Bank of Bikaner
Jaipur, Panthaghati, Shimla dated 20.9.2016 was issued in favour of
petitioner Vikram Chandel, which was encashed in favour of petitioner
Vikram Chandel in his account No. 51113794745, whereas Flat No. 3,
shown in aforesaid forged sale deed has been sold by petitioner Vikram
Chandel to Smt. Kalpana W/o Sh.Vijay Verma, R/o Village Kui, P.O.
Matyana, Tehsil Theog, District Shimla, H.P. through sale deed No. 2310 of
2017 dated 27.11.2017 and the aforesaid Kalpana, in relation, is elder sister
.
of Vikram Chandel.
10. According to respondent-State, it has been found that
petitioner Vikram Chandel, in connivance with Sanjeev Kumar had executed
sale agreement dated 8.9.2016 with respect to Flat No. 3 and on the basis
of said agreement fabricated a forged sale deed No. 2341 of 2016 dated
23.9.2016 and received Rs.22,50,000/- in his account.
11. It has been further stated by learned Deputy Advocate Geneal
that petitioner Vikram Chandel through banker's checque No. 433321 had
received Rs.36,00,000/- in his account maintained in State Bank of India
and on 10.3.2017 he received Rs.29,89,000/- through cheque No. 433574.
Further that petitioner had failed to justify receipt of aforesaid amount in his
account and has failed to produce valid documents for receipt of the said
amount.
12. It has been further stated by respondent-State that, during
investigation, Mehak daughter of Kamaljeet cousin of petitioner was
interrogated because amount of Rs.36,00,000/- was received by the
petitioner from loan account of Mehak on the basis of loan disbursed in her
name. She informed the Investigating Agency/Officer that Vikram Chandel
is her cousin and she is married and living with her husband and is serving
as a Nursing Officer since 2019 in ESIC Model Hospital, Baddi, and during
2015 to 2017 she was serving as Tutor in Guru Ram Rai College of Nursing
Dehradoon, and further that she had not taken any loan from State Bank of
Bikaner Jaipur, Panthaghati in the year 2016. According to her the loan
.
account in her name was not opened by her, but it was opened in her name
by someone by committing fraud and the amount released through this loan
account was not in her knowledge but petitioner Vikram Chandel had paid
all installments of the said loan and she had no knowledge about debit and
credit of any amount in the said account. She has further disclosed that
accused Jitender is known to her being friend of her cousin petitioner
Vikram Chandel, but she did not known any Sanjeev Kumar. She has
denied her signatures on loan file of Sanjeev Kumar being guarantor, but
has identified her photo on the form in the document of the said loan.
13. It has been submitted by the Investigating Officer that in
forged sale deed dated 21.9.2016 executed between petitioner Vikram
Chandel and Sanjeev Verma, Mehak daughter of Kamaljeet has been
shown as a witness and petitioner Vikram Chandel as Vendor and Sanjeev
Verma as a Vendee.
14. Referring signatures on agreement dated 25.8.2016 executed
between petitioner Vikram Chandel and Jitender Verma, learned counsel for
the petitioner has submitted that signatures on the forged sale deed are not
of the petitioner, but someone else, to be disclosed by main accused person
because petitioner Vikram Chandel was not party in that.
15. Petitioner had approached learned Additional Sessions
Judge-II, Shimla for anticipatory bail, which was dismissed. Thereafter,
petitioner has approached this Court for enlarging him on anticipatory bail.
.
Co-ordinate Bench of this Court vide order dated 1.3.2024, had enlarged
him on anticipatory bail. In aforesaid circumstances, it has been submitted
by learned Deputy Advocate General that present petition deserves to be
dismissed as custodial interrogation of the petitioner to reveal the truth is
necessary, which he is not disclosing, despite associating him in the
investigation for number of times.
16. Learned counsel for the petitioner, referring order dated
1.3.2024 passed by the Supreme Court in case, titled as Ashok Kumar Vs.
State of Union Territory Chandigarh (Special Leave Petition (Crl.) No.
9949/2023), has contended that mere assertion on the part of State while
opposing the plea for anticipatory bail that custodial interrogation is
required, would not be sufficient. The State would have to show or indicate
more than prima facie why the custodial interrogation of the accused is
required for the purpose of investigation.
17. Learned counsel for the petitioner has further submitted that
petitioner since March, 2023 has been called only for four times and he
attended and remained associated in the investigation. It is claim of the
Investigating Officer that petitioner was asked to join investigation for more
than seven times, but he did not co-operate and disclose the facts related to
him.
18. Learned counsel for the petitioner has submitted that offence
has been committed by others and petitioner was lawfully entitled to receive
money from them for his legally valid claim in furtherance to agreement
.
dated 25.8.2016, which has also been supplied to the Investigating Agency
and he has appeared and co-operated with the Investigation Agency and
supplied the relevant documents. Further that he has deep roots in the
society and there is no possibility of his fleeing from justice. According to
learned counsel, allegations and material against the petitioner is yet to be
proved in the Court and as he is not required for further investigation, there
is no need to curtail his personal liberty because petitioner is ready to join
the investigation and to furnish bail bonds and to abide by any conditions to
be imposed by the Court for enlarging him on bail.
19. Learned Deputy Advocate General has submitted that
petitioner is active participant in the organized crime, whereby loss of huge
public money has been caused on the basis of fake documents by
committing fraud upon the bank and petitioner is recipient of the amount so
disbursed on the basis of fake documents and till date nothing has been
recovered and three accused persons are still absconding and, therefore,
there is every possibility that petitioner after availing the benefit of
anticipatory bail may flee.
20. History and object of incorporation of provisions of Section
438 Cr.P.C., and also factors and principles to be taken into consideration
at the time of considering bail application under Section 438 Cr.P.C. have
been discussed in detail in judgment dated 06.07.2020 passed by this Court
in Cr.M.P.(M) No.944 of 2020, titled as Freed vs. State of H.P.
21. Provisions related to information to the Police and their
.
powers to investigate have been incorporated in Sections 154 to 176
contained in Chapter-XII of the Code of Criminal Procedure ('Cr.P.C.' for
short).
22. Section 156 Cr.P.C. empowers Police Officer to investigate in
cognizable offences without order of the Magistrate and Section 157
prescribes procedure for investigation, which also provides that when an
Officer Incharge of a Police Station has reason to suspect the commission
of an offence, which he is empowered to investigate under Section 156, he,
after sending a report to the Magistrate, shall proceed in person or shall
depute one of his subordinate Officers as prescribed in this behalf, to
proceed, to the spot, to investigate the facts and circumstances of the case,
and, if necessary, to take measures for the discovery and arrest of the
offender.
23. Chapter V of the Cr.P.C. deals with provisions related to
arrest of persons, wherein Section 41 also, inter alia, provides that any
Police Officer may, without an order from Magistrate, and without a warrant,
arrest any person against whom reasonable complaint has been made or
credible information has been received, or a reasonable suspicion exists
that he has committed a cognizable offence punishable with imprisonment
which may be less than seven years or may extend to seven years, subject
to condition that he has reason to believe, on the basis of such complaint,
information, or suspicion, that such person has committed the said offence
and also if the Police Officer is satisfied of either of the conditions provided
.
under Section 41(1)(b)(ii), which also include that if such arrest is necessary
"for proper investigation of the offence". Whereas Section 41(1)(ba)
empowers the Police Officer to make such arrest of a person against whom
credible information has been received that he has committed a cognizable
offence punishable with imprisonment for a term which may extend to more
than seven years or with death sentence and the Police Officer has reason
to believe, on the basis of that information, that such person has committed
the said offence, and for commission of such offence no further condition is
required to be satisfied by the Police Officer. Therefore, Police
Officer/Investigating Officer is empowered to arrest the offender or the
suspect for proper investigation of the offence as provided under Section 41
read with Section 157 Cr.P.C.
24. Article 21 of the Constitution of India provides that no person
shall be deprived of his life or personal liberty except according to the
procedure established by law. Arrest of an offender during investigation, as
discussed supra, is duly prescribed in Cr.P.C.
25. At the same time, Cr.P.C. also contains Chapter XXXIII,
providing provision as to bail and bonds, which empowers the Magistrate,
Sessions Court and High Court to grant bail to a person arrested by the
Police/Investigating Officer in accordance with provisions contained in this
Chapter. This Chapter also contains Section 438 empowering the Court to
issue directions for grant of bail to a person apprehending his arrest.
Normally, such bail is called as "Anticipatory Bail". Scope and ambit of law
.
on Anticipatory Bail has been elucidated by the Courts time and again.
26. Initially, provision for granting Anticipatory Bail by the court
was not in the Cr.P.C., but on the recommendation of the Law commission
of India in its 41st Report, the Commission had pointed out necessity for
introducing a set provision in the Cr.P.C. enabling the High Court and Court
of Session to grant Anticipatory Bail, mainly because sometimes influential
persons try to implicate their rivals in false cases for the purpose of
disgracing them or for other purposes by getting them detained in jail for
some days. It was also observed by the Commission that with the
accentuation of political rivalry, this tendency was showing signs and steady
increase and further that where there are reasonable grounds for holding
that the person accused of an offence is not likely to abscond or otherwise
misuse his liberty, while on bail, there seems no justification to require him
to submit to custody, remain in prison for some days and then apply for bail.
On the basis of these recommendations, provision of Section 438 Cr.P.C.
was included in Cr.P.C. as an antidote for preventing arrest and detention in
false case. Therefore, interpretation of Section 438 Cr.P.C., in larger public
interest, has been done by the Courts by reading it with Article 21 of the
Constitution of India to keep arbitrary and unreasonable limitations on
personal liberty at bay. The essence of mandate of Article 21 of the
Constitution of India is the basic concept of Section 438 Cr.P.C.
27. Section 438 Cr.P.C. empowers the Court either to reject the
.
application forthwith or issue an interim order for grant of Anticipatory Bail,
at the first instance, after taking into consideration, inter alia, the factors
stated in sub-section (1) of Section 438 Cr.P.C. and in case of issuance of
an interim order for grant of Anticipatory Bail the application shall be finally
heard by the Court after giving reasonable opportunity of being heard to the
Police/ Prosecution. Section 438 Cr.P.C. prescribes certain factors which
are to be considered at the time of passing interim order for grant of
Anticipatory Bail amongst others, but no such factors have been prescribed
for taking into consideration at the time of final hearing of the case.
Undoubtedly, those factors which are necessary to be considered at the
time of granting interim bail are also relevant for considering the bail
application at final stage.
28. A balance has to be maintained between the right of personal
liberty and the right of Investigating Agency to investigate and to arrest an
offender for the purpose of investigation, keeping view various parameters
as elucidated by the Court in Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 and Sushila Aggarwal & others v. State (NCT of Delhi)
& another, (2018) 7 SCC 731 cases and also in other pronouncements
referred by learned counsel for CBI.
29. The Legislature, in order to protect right of the Investigating
Agency and to avoid interference of the Court at the stage of investigation,
has deliberately provided under Section 438 Cr.P.C. that High Court and the
.
Court of Session are empowered to issue direction that in the event of
arrest, an offender or a suspect shall be released on bail. The Court has no
power to issue direction to the Investigating Agency not to arrest an
offender. A direction under Section 438 Cr.P.C. is issued by the Court, in
anticipation of arrest, to release the offender after such arrest. It is an
extraordinary provision empowering the Court to issue direction to protect
an offender from detection. Therefore, this power should be exercised by
the Court wherever necessary and not for those who are not entitled for
such intervention of the Court at the stage of investigation, for nature and
gravity of accusation, their antecedents or their conduct disentitling them
from favour of Court for such protection.
30. Where right to investigate, and to arrest and detain an
accused during investigation, is provided under Cr.P.C., there are
provisions of Articles 21 and 22 of the Constitution of India, guaranteeing
protection of life and personal liberty as well as against arrest and detention
in certain cases. It is well settled that interference by the Court at the
investigation stage, in normal course, is not warranted. However, as
discussed supra, Section 438 Cr.P.C. is an exception to general principle
and at the time of exercising power under Section 438 Cr.P.C., balance
between right of Investigating Agency and life and liberty of a person has to
be maintained by the Courts, in the light of Fundamental Rights guaranteed
under Articles 21 and 22 of the Constitution of India, but also keeping in
mind interference by the Court directing the Investigating Officer not to
.
arrest an accused amounts to interference in the investigation.
31. Though bail is rule and jail is exception. However, at the same
time, it is also true that even in absence of necessity of custodial
interrogation also, an accused may not be entitled for anticipatory bail in all
eventualities. Based on other relevant factors, parameters and principles
enumerated and propounded by Courts in various pronouncements, some
of which have also been referred by learned counsel for CBI, anticipatory
bail may be denied to an accused. Requirement of custodial interrogation is
not only reason for rejecting bail application under Section 438 Cr.P.C.
32. Nature and gravity of offence, extent of involvement of
petitioners, manner of commission of offence, antecedents of petitioners,
possibility of petitioners fleeing from justice and impact of granting or
rejecting the bail on society as well as petitioner, are also amongst those
several relevant factors which may compel the Court to reject or accept the
bail application under Section 438 Cr.P.C. It is not possible to visualize all
factors and enlist them as every case is to be decided in its peculiar facts
and circumstances.
33. Undoubtedly, as pleaded by learned counsel for the
petitioner, bail is rule and jail is exception. But, at the same time, this rule
does not mean that in every case bail is to be granted in all eventualities.
The Supreme Court, in its various pronouncements, as also referred by this
Court in State of Sandeep v. State of Himachal Pradesh, reported in
2019(1) Shim.LC 263, has culled out various factors and parameters to be
.
taken into consideration at the time of deciding the bail applications, which
also include denial of bail based on those factors and principles. The
general rule 'bail but not jail' cannot be used as a weapon to render the
provisions, empowering the Court to reject the bail redundant, and/or as a
guiding factor to enlarge an accused on bail, in every case.
34. The Supreme Court has considered the right to pre-arrest
bail, provided under Section 438 Cr.PC, and factors and parameters to be
taken into consideration by the Courts, while accepting or rejecting a bail
petition under Section 438 Cr.PC, in numerous cases, including Gurbaksh
Singh Sibbia & others v. State of Punjab, (1980) 2 SCC 565; Savitri
Agarwal and others v. State of Maharashtra and another, (2009) 8 SCC
325; Siddharam Satlingappa Mhetre v. State of Maharashtra and
others, (2011) 1 SCC 694; Bhadresh Bipinbhai Sheth v. State of Gujarat
and another, (2016) 1 SCC 152; Special Leave Petition (Criminal)
Nos.7281 of 2017 and 7282 of 2017, decided on 19.1.2020, titled as
Sushila Aggarwal & Others v. State (NCT of Delhi) & another, (2020) 5
SCC 1; Fekan Yadav v. Satendr Yadav alias Boss Yadav alias Satendra
Kumar and others, (2017) 16 SCC 775; Prem Giri v. State of Rajasthan,
(2018) 6 SCC 571; and Prem Giri v. State of Rajasthan, (2018) 12 SCC
20}, which have been referred in Freed and other connected matters v.
State, reported in 2020(4) Shim.LC 1614.
35. This Court in Freed's case supra has observed as under: "
.
"17. Fundamental of criminal jurisprudence postulates
'presumption of innocence', meaning thereby that a person is
believed to be innocent until found guilty and grant of bail is the
general rule and putting a person in jail or in prison or in correction
home, during trial, is an exception and bail is not to be withheld as
a punishment and it is also necessary Cr.MPs(M) No.811 to 814 of
2021 ...10... to consider whether the accused is a first time
offender or has been accused of other offences and, if so, nature
of such offence and his or her general conduct also requires
consideration. Character of the complainant and accused is also a
relevant factor. Reiterating these principles, the Apex Court in
Dataram Singh v. State of Uttar Pradesh and another, (2018) 3
SCC 22, has also observed that however it should not be
understood to mean that bail should be granted in every case, and
the grant or refusal of bail is entirely within the discretion of the
Judge hearing the matter and though that discretion is unfettered,
it must be exercised judiciously and in a humane manner and
compassionately.
18. While considering a bail application, it would be necessary
on the part of the Court to see culpability of the accused and
his involvement in the commission of organized crime, either
directly or indirectly, and also to consider the question from
the angle as to whether applicant was possessed of the
requisite mens rea. Interim bail, pending investigation, can be
granted, keeping in view the facts and circumstances of the
case.
...........
21. Dealing with the provisions of Section 438 Cr.PC, the
Supreme Court in P. Chidambaram v. Directorate of
Enforcement, (2019) 9 SCC 24, has observed as under:
"Grant of Anticipatory bail in exceptional cases
69. Ordinarily, arrest is a part of procedure of the investigation
to secure not only the presence of the accused but several
other purposes. Power under Section 438 CrPC is an
extraordinary power and the same has to be exercised
sparingly. The privilege of the prearrest bail should be granted
only in exceptional cases. The judicial discretion conferred
upon the court has to be properly exercised after application
of mind as to the nature and gravity of the accusation;
possibility of applicant fleeing justice and other factors to
decide whether it is a fit case for grant of anticipatory bail.
Grant of anticipatory bail to some extent interferes in the
sphere of investigation of an offence and hence, the court
must be circumspect while exercising such power for grant of
anticipatory bail. Anticipatory bail is not to be granted as a
matter of rule and it has to be granted only when the court is
.
convinced that exceptional circumstances exist to resort to
that extraordinary remedy.
70. On behalf of the appellant, much arguments were
advanced contending that anticipatory bail is a facet of Article
21 of the Constitution of India. It was contended that unless
custodial interrogation is warranted, in the facts and
circumstances of the case, denial of anticipatory bail would
amount to denial of the right conferred upon the appellant
under Article 21 of the Constitution of India.
71. Article 21 of the Constitution of India states that no person
shall be deprived of his life or personal liberty except
according to procedure prescribed by law. However, the
power conferred by Article 21 of the Constitution of India is not
unfettered and is qualified by the later part of the Article i.e.
"....except according to a procedure prescribed by law." In
State of M.P. and another v. Ram Kishna Balothia, (1995) 3
SCC 221, the Supreme Court held that the right of anticipatory
bail is not a part of Article 21 of the Constitution of India and
held as under: (SCC p.226, para 7)
"7. ........We find it difficult to accept the contention that
Section 438 of the Code of Criminal Procedure is an
integral part of Article 21. In the first place, there was no
provision similar to Section 438 in the old Criminal
Procedure Code. The Law Commission in its 41st
Report recommended introduction of a provision for
grant of anticipatory bail. It observed: 'We agree that
this would be a useful advantage. Though we must add
that it is in very exceptional cases that such power
should be exercised.'
In the light of this recommendation, Section 438 was
incorporated, for the first time, in the Criminal Procedure Code
of 1973. Looking to the cautious recommendation of the Law
Commission, the power to grant anticipatory bail is conferred
only on a Court of Session or the High Court. Also,
anticipatory bail cannot be granted as a matter of right. It is
essentially a statutory right conferred long after the coming
into force of the Constitution. It cannot be considered as an
essential ingredient of Article 21 of the Constitution. And its
non-application to a certain special category of offences
cannot be considered as violative of Article 21." (emphasis
supplied)
72. We are conscious of the fact that the legislative intent
behind the introduction of Section 438 Cr.P.C. is to safeguard
the individual's personal liberty and to protect him from the
.
possibility of being humiliated and from being subjected to
unnecessary police custody. However, the court must also
keep in view that a criminal offence is not just an offence
against an individual, rather the larger societal interest is at
stake. Therefore, a delicate balance is required to be
established between the two rights - safeguarding the
personal liberty of an individual and the societal interest. It
cannot be said that refusal to grant anticipatory bail would
amount to denial of the rights conferred upon the appellant
under Article 21 of the Constitution of India.
73. The learned Solicitor General has submitted that
depending upon the facts of each case, it is for the
investigating agency to confront the accused with the material,
only when the accused is in custody. It was submitted that the
statutory right under Section 19 of PMLA has an in-built
safeguard against arbitrary exercise of power of arrest by the
investigating officer. Submitting that custodial interrogation is
a recognised mode of interrogation which is not only
permissible but has been held to be more effective, the
learned Solicitor General placed reliance upon State v. Anil
Sharma, (1997) 7 SCC 187; Sudhir v. State of Maharashtra,
(2016) 1 SCC 146; and Directorate of Enforcement v. Hassan
Ali Khan, (2011) 12 SCC 684.
74. Ordinarily, arrest is a part of the process of the
investigation intended to secure several purposes. There may
be circumstances in which the accused may provide
information leading to discovery of material facts and relevant
information. Grant of anticipatory bail may hamper the
investigation. Pre-arrest bail is to strike a balance between the
individual's right to personal freedom and the right of the
investigating agency to interrogate the accused as to the
material so far collected and to collect more information which
may lead to recovery of relevant information. In State v. Anil
Sharma, (1997) 7 SCC 187, the Supreme Court held as
under: (SCC p.189, para 6)
"6. We find force in the submission of the CBI that
custodial interrogation is qualitatively more elicitation-
oriented than questioning a suspect who is well
ensconced with a favourable order under Section 438
of the Code. In a case like this effective interrogation of
a suspected person is of tremendous advantage in
disinterring many useful informations and also
materials which would have been concealed. Success
in such interrogation would elude if the suspected
person knows that he is well protected and insulated
by a pre-arrest bail order during the time he is
interrogated. Very often interrogation in such a
.
condition would reduce to a mere ritual. The argument
that the custodial interrogation is fraught with the
danger of the person being subjected to third-degree
methods need not be countenanced, for, such an
argument can be advanced by all accused in all
criminal cases. The Court has to presume that
responsible police officers would conduct themselves
in a responsible manner and that those entrusted with
the task of disinterring offences would not conduct
themselves as offenders."
75. Observing that the arrest is a part of the investigation
intended to secure several purposes, in Adri Dharan Das v.
State of W.B., (2005) 4 SCC 303, it was held as under: (SCC
p.313, para 19)
"19. Ordinarily, arrest is a part of the process of
investigation intended to secure several purposes. The
accused may have to be questioned in detail regarding
various facets of motive, preparation, commission and
aftermath of the crime and the connection of other
persons, if any, in the crime. There may be
circumstances in which the accused may provide
information leading to discovery of material facts. It
may be necessary to curtail his freedom in order to
enable the investigation to proceed without hindrance
and to protect witnesses and persons connected with
the victim of the crime, to prevent his disappearance,
to maintain law and order in the locality. For these or
other reasons, arrest may become an inevitable part of
the process of investigation. The legality of the
proposed arrest cannot be gone into in an application
under Section 438 of the Code. The role of the
investigator is well defined and the jurisdictional scope
of interference by the court in the process of
investigation is limited. The court ordinarily will not
interfere with the investigation of a crime or with the
arrest of the accused in a cognizable offence. An
interim order restraining arrest, if passed while dealing
with an application under Section 438 of the Code will
amount to interference in the investigation, which
cannot, at any rate, be done under Section 438 of the
Code."
76. In Siddharam Satlingappa Mhetre v. State of Maharashtra,
(2011) 1 SCC 694, the Supreme Court laid down the factors
and parameters to be considered while dealing with
anticipatory bail. It was held that the nature and the gravity of
the accusation and the exact role of the accused must be
properly comprehended before arrest is made and that the
.
court must evaluate the available material against the accused
very carefully. It was also held that the court should also
consider whether the accusations have been made only with
the object of injuring or humiliating the applicant by arresting
him or her. 7
77. After referring to Siddharam Satlingappa Mhetre and other
judgments and observing that anticipatory bail can be granted
only in exceptional circumstances, in Jai Prakash Singh v.
State of Bihar, (2012) 4 SCC 379, the Supreme Court held as
under: (SCC p.386, para 19) "19. Parameters for grant of
anticipatory bail in a serious offence are required to be
satisfied and further while granting such relief, the court must
record the reasons therefor. Anticipatory bail can be granted
only in exceptional circumstances where the court is prima
facie of the view that the applicant has falsely been enroped in
the crime and would not misuse his liberty. (See D.K. Ganesh
Babu v. P.T. Manokaran, (2007) 4 SCC 434, State of
Maharashtra v. Mohd. Sajid Husain Mohd. S. Husain, (2008) 1
SCC 213 and Union of India v. Padam Narain Aggarwal,
(2008) 13 SCC 305.)""
36. In Mangal Singh Negi v. Central Bureau of Investigation,
reported in 2021(2) Shim.LC 860, this Court observed as under:
"22. Article 21 of the Constitution of India provides that no
person shall be deprived of his life or personal liberty except
according to the procedure established by law. Arrest of an
offender during investigation, as discussed supra, is duly
prescribed in Cr.P.C.
23. At the same time, Cr.P.C. also contains Chapter XXXIII,
providing provision as to bail and bonds, which empowers the
Magistrate, Sessions Court and High Court to grant bail to a
person arrested by the Police/Investigating Officer in
accordance with provisions contained in this Chapter. This
Chapter also contains Section 438 empowering the Court to
issue directions for grant of bail to a person apprehending his
arrest. Normally, such bail is called as "Anticipatory Bail".
Scope and ambit of law on Anticipatory Bail has been
elucidated by the Courts time and again.
24. Initially, provision for granting Anticipatory Bail by the court
was not in the Cr.P.C., but on the recommendation of the Law
commission of India in its 41st Report, the Commission had
pointed out necessity for introducing a set provision in the
Cr.P.C. enabling the High Court and Court of Session to grant
Anticipatory Bail, mainly because sometimes influential
.
persons try to implicate their rivals in false cases for the
purpose of disgracing them or for other purposes by getting
them detained in jail for some days. It was also observed by
the Commission that with the accentuation of political rivalry,
this tendency was showing signs and steady increase and
further that where there are reasonable grounds for holding
that the person accused of an offence is not likely to abscond
or otherwise misuse his liberty, while on bail, there seems no
justification to require him to submit to custody, remain in
prison for some days and then apply for bail. On the basis of
these recommendations, provision of Section 438 Cr.P.C. was
included in Cr.P.C. as an antidote for preventing arrest and
detention in false case. Therefore, interpretation of Section 438
Cr.P.C., in larger public interest, has been done by the Courts
by reading it with Article 21 of the Constitution of India to keep
arbitrary and unreasonable limitations on personal liberty at
bay. The essence of mandate of Article 21 of the Constitution
of India is the basic concept of Section 438 Cr.P.C.
25. Section 438 Cr.P.C. empowers the Court either to reject
the application forthwith or issue an interim order for grant of
Anticipatory Bail, at the first instance, after taking into
consideration, inter alia, the factors stated in sub-section (1) of
Section 438 Cr.P.C. and in case of issuance of an interim order
for grant of Anticipatory Bail the application shall be finally
heard by the Court after giving reasonable opportunity of being
heard to the Police/ Prosecution. Section 438 Cr.P.C.
prescribes certain factors which are to be considered at the
time of passing interim order for grant of Anticipatory Bail
amongst others, but no such factors have been prescribed for
taking into consideration at the time of final hearing of the case.
Undoubtedly, those factors which are necessary to be
considered at the time of granting interim bail are also relevant
for considering the bail application at final stage.
26. A balance has to be maintained between the right of
personal liberty and the right of Investigating Agency to
investigate and to arrest an offender for the purpose of
investigation, keeping view various parameters as elucidated
by the court in Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 and Sushila Aggarwal & others v. State
(NCT of Delhi) & another, (2020) 5 SCC 1 cases and also in
other pronouncements referred by learned counsel for CBI."
37. Considering the factors and parameters, necessary to be
considered for adjudication of anticipatory bail under Section 438 Cr.PC, as
.
propounded by the Supreme Court as referred by this Court in Freed's case
(supra) and various other pronouncements of the Supreme Court, referred
supra, but without commenting on merits of material produced before me, I
find that it is not a fit case for continuation of bail under Section 438 Cr.PC.
38. Needless to say that petitioners have a right to approach the
Court, under Section 439 Cr.PC, seeking regular bail. In such eventuality,
such application shall be considered on the basis of its own merits, within
parameters relevant for adjudication of that.
39. Observations made in this petition hereinbefore, shall not
affect the merits of the case in any manner and are strictly confined for the
disposal of the bail application.
Petition is dismissed and disposed of.
(Vivek Singh Thakur),
7th May, 2024 Judge.
(Keshav)
