Punjab-Haryana High Court
Mahesh Kumar @ Mahesh Bansal vs State Of Haryana on 2 May, 2024
Author: Pankaj Jain
Bench: Pankaj Jain
Neutral Citation No:=2024:PHHC:060534
2024:PHHC:060534
226 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-20686-2024
Date of Decision : 02-05-2024
Mahesh Kumar @ Mahesh Bansal
........Petitioner
Versus
State of Haryana
........Respondent
CORAM: HON'BLE MR. JUSTICE PANKAJ JAIN
Present:- Mr. Jatinder Kumar Kansal,Advocate for
Mr. Abhinav Gupta, Advocate
for the petitioner.
Mr.Ashok Kumar Sehrawat, DAG Haryana.
PANKAJ JAIN, J. (Oral)
1. Prayer in the petition is for grant of regular bail in FIR
No.355 dated 28.10.2020 (Annexure P-1) registered for offences
punishable under Sections 406, 420, 419, 465, 467, 468 and 471, 120-B
of IPC (Sections 409 of IPC added later on) and Section 132 CGST Act,
2017 at Police Station Civil Line Sirsa, District Sirsa.
2. Counsel for the petitioner refers to order dated 22.03.2024
passed in CRM-M-14024-2024 whereby co-accused Padam Bansal has
already been granted regular bail by this Court observing as under:-
"1. The afore-captioned petitions have been filed by the
petitioners under Section 439 Cr.P.C. seeking grant of regular bail
pending trial in the following FIRs :
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FIR No. Offences punishable Registered at
under Sections
527 dated 406, 409, 419, 465, 467, Police Station Sirsa
27.07.2016 468, 471 and 120-B of City, District Sirsa
IPC.
647 dated 406, 419, 420, 465, 467, Police Station Sirsa
24.10.2020 468, 471, 409 and 120- City, District Sirsa
B of IPC.
348 dated 406, 419, 420, 465, 467, Police Station Civil
24.10.2020 468, 471, 409 & 120-B Lines Sirsa, District
of IPC and Section 132 Sirsa
of Central Good and
Services Tax Act
(CGST)
528 dated 406, 409, 419, 420, 465, Police Station Sirsa
27.07.2016 467, 468, 471 and 120- City, District Sirsa
B of IPC.
644 dated 406, 419, 420, 465, 467, Police Station Sirsa
24.10.2020 468, 471, 409 & 120-B City, District Sirsa
of IPC.
650 dated 406, 409, 419, 420, 465, Police Station Sirsa
24.10.2020 467, 468, 471 & 120-B City, District Sirsa
of IPC.
642 dated 406, 409, 419, 420, 465, Police Station Sirsa
24.10.2020 467, 468, 471 and 120- City, District Sirsa
B IPC.
2. All the matters involve similar allegations, thus the
same are being disposed off by common order.
3. Counsel for the petitioner submits that the prime
accused Amit Bansal stands admitted to bail vide order dated
08.02.2024, observing as under:-
"xx xx xxx
3. Counsel for the petitioner(s) submits that the matters
relate to evasion of tax under Haryana VAT Act and in light of
Section 37 read with Section 38, petitioners ought not have been
booked for offences punishable under IPC.
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4. The legislature in its own wisdom has excluded the
jurisdiction of police authorities and provisions of Indian
Penal Code. It is evident from the fact that the officer though
has been provided with power under 1973 Code, but there is
no power of custodial interrogation. The legislature has
provided specific penal provisions in VAT Act, which is a
complete code in itself. Officers have been clothed only with
the power as provided under Code of 1973. Thus,
jurisdiction of police stands excluded. Reliance is being
placed upon Union of India vs. Ashok Kumar Sharma &
Ors. 2020 AIR (Supreme Court) 5274.
5. The parameters to be considered while deciding the
prayer for bail are well laid down by Apex Court in the case
of 'State through CBI vs. Amaramani Tripathi, reported
as 2005(8) SCC 21', holding that:
"xx xx xx It is well settled that the matters to be considered in an application for bail
are (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 charge; (iii)
severity of the punishment in the event of conviction; (iv) danger of 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 tampered with; and (viii) danger, of
course, of justice being thwarted by grant of bail (see Prahlad Singh Bhati vs. NCT,
Delhi 2001 (4) SCC 280 and Gurcharan Singh vs. State (Delhi Administration) AIR
1978 SC 179). While a vague allegation that accused may tamper with the evidence
or witnesses may not be a ground to refuse bail, if the accused is of such character
that his mere presence at large would intimidate the witnesses or if there is material
to show that he will use his liberty to subvert justice or tamper with the evidence,
then bail will be refused."
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6. Coordinate Bench in Maninder Sharma's case
(supra) laid down the following tripode test while dealing
with economic offences:-
"xx xx xx Further, while considering the grant of bail, the
triple/tripod test would also be a relevant consideration. The
three factors as set out in the said test are:- (i) Whether the
accused is a flight risk; (ii) Whether the accused will tamper
with the evidence, if granted bail & (iii) whether the accused
could influence the witnesses, if granted bail. 8. Therefore,
broadly speaking (subject to any statutory restrictions
contained in Special Acts) , in economic offences involving
the IPC or Special Acts or cases triable by Magistrates once
the investigation is complete, final report/complaint filed and
the triple test is satisfied then denial of bail must be the
exception rather than the rule. However, this would not
prevent the Court from granting bail even prior to the
completion of investigation if the facts so warrant."
7. There is no denial to the fact that the economic
offences constitute a separate class of their own, but trite it
is that presumption of innocence is one of the bedrocks on
which the criminal jurisprudence rests. Time and again,
Apex Court has reiterated the need to integrate the right of
investigating agencies to have effective interrogation of the
accused with the right of liberty of the accused. While
dealing extensively with the rights of the accused in the
economic offences, Apex Court in the case of Satender
Kumar Antil vs. Central Bureau of Investigation and
another, reported as 2022 AIR (Supreme Court) 3386
held as under :
"xx xx xx
66. What is left for us now to discuss are the economic offences.
The question for consideration is whether it should be treated as a
class of its own or otherwise. This issue has already been dealt with
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by this Court in the case of P. Chidambaram v. Directorate of
Enforcement, (2020) 13 SCC 791, after taking note of the earlier
decisions governing the field. The gravity of the offence, the object
of the Special Act, and the attending circumstances are a few of the
factors to be taken note of, along with the period of sentence. After
all, an economic offence cannot be classified as such, as it may
involve various activities and may differ from one case to another.
Therefore, it is not advisable on the part of the court to categorise
all the offences into one group and deny bail on that basis. Suffice it
to state that law, as laid down in the following judgements, will
govern the field:-
Precedents
P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC
791:
23. Thus, from cumulative perusal of the judgments cited on either
side including the one rendered by the Constitution Bench of
this Court, it could be deduced that the basic jurisprudence
relating to bail remains the same inasmuch as the grant of bail
is the rule and refusal is the exception so as to ensure that the
accused has the opportunity of securing fair trial. However,
while considering the same the gravity of the offence is an
aspect which is required to be kept in view by the Court. The
gravity for the said purpose will have to be gathered from the
facts and circumstances arising in each case. Keeping in view
the consequences that would befall on the society in cases of
financial irregularities, it has been held that even economic
offences would fall under the category of "grave offence" and
in such circumstance while considering the application for bail
in such matters, the Court will have to deal with the same,
being sensitive to the nature of allegation made against the
accused. One of the circumstances to consider the gravity of
the offence is also the term of sentence that is prescribed for
the offence the accused is alleged to have committed. Such
consideration with regard to the gravity of offence is a factor
which is in addition to the triple test or the tripod test that
would be normally applied. In that regard what is also to be
kept in perspective is that even if the allegation is one of grave
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economic offence, it is not a rule that bail should be denied in
every case since there is no such bar created in the relevant
enactment passed by the legislature nor does the bail
jurisprudence provide so. Therefore, the underlining
conclusion is that irrespective of the nature and gravity of
charge, the precedent of another case alone will not be the
basis for either grant or refusal of bail though it may have a
bearing on principle. But ultimately the consideration will
have to be on case-to-case basis on the facts involved therein
and securing the presence of the accused to stand trial.
Sanjay Chandra v. CBI (2012) 1 SCC 40:
"39. Coming back to the facts of the present case, both the courts
have refused the request for grant of bail on two grounds: the
primary ground is that the offence alleged against the accused
persons is very serious involving deep-rooted planning in
which, huge financial loss is caused to the State exchequer; the
secondary ground is that of the possibility of the accused
persons tampering with the witnesses. In the present case, the
charge is that of cheating and dishonestly inducing delivery of
property and forgery for the purpose of cheating using as
genuine a forged document. The punishment for the offence is
imprisonment for a term which may extend to seven years. It
is, no doubt, true that the nature of the charge may be relevant,
but at the same time, the punishment to which the party may
be liable, if convicted, also bears upon the issue. Therefore, in
determining whether to grant bail, both the seriousness of the
charge and the severity of the punishment should be taken into
consideration.
40. The grant or refusal to grant bail lies within the discretion of the
court. The grant or denial is regulated, to a large extent, by the
facts and circumstances of each particular case. But at the
same time, right to bail is not to be denied merely because of
the sentiments of the community against the accused. The
primary purposes of bail in a criminal case are to relieve the
accused of imprisonment, to relieve the State of the burden of
keeping him, pending the trial, and at the same time, to keep
the accused constructively in the custody of the court, whether
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before or after conviction, to assure that he will submit to the
jurisdiction of the court and be in attendance thereon whenever
his presence is required.
x xxx xxx
46. We are conscious of the fact that the accused are charged with
economic offences of huge magnitude. We are also conscious
of the fact that the offences alleged, if proved, may jeopardise
the economy of the country. At the same time, we cannot lose
sight of the fact that the investigating agency has already
completed investigation and the charge-sheet is already filed
before the Special Judge, CBI, New Delhi. Therefore, their
presence in the custody may not be necessary for further
investigation. We are of the view that the appellants are
entitled to the grant of bail pending trial on stringent
conditions in order to ally the apprehension expressed by
CBI."
ROLE OF THE COURT
67. The rate of conviction in criminal cases in India is abysmally
low. It appears to us that this factor weighs on the mind of the
Court while deciding the bail applications in a negative sense.
Courts tend to think that the possibility of a conviction being
nearer to rarity, bail applications will have to be decided
strictly, contrary to legal principles. We cannot mix up
consideration of a bail application, which is not punitive in
nature with that of a possible adjudication by way of trial. On
the contrary, an ultimate acquittal with continued custody
would be a case of grave injustice.
68. Criminal courts in general with the trial court in particular are
the guardian angels of liberty. Liberty, as embedded in the
Code, has to be preserved, protected, and enforced by the
Criminal Courts. Any conscious failure by the Criminal
Courts would constitute an affront to liberty. It is the pious
duty of the Criminal Court to zealously guard and keep a
consistent vision in safeguarding the constitutional values and
ethos. A criminal court must uphold the constitutional thrust
with responsibility mandated on them by acting akin to a high
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priest. This Court in Arnab Manoranjan Goswami v. State
of Maharashtra, (2021) 2 SCC 427, has observed that:
"67. Human liberty is a precious constitutional value, which is
undoubtedly subject to regulation by validly enacted
legislation. As such, the citizen is subject to the edicts of
criminal law and procedure. Section 482 recognises the
inherent power of the High Court to make such orders as are
necessary to give effect to the provisions of CrPC "or prevent
abuse of the process of any court or otherwise to secure the
ends of justice". Decisions of this Court require the High
Courts, in exercising the jurisdiction entrusted to them under
Section 482, to act with circumspection. In emphasising that
the High Court must exercise this power with a sense of
restraint, the decisions of this Court are founded on the basic
principle that the due enforcement of criminal law should not
be obstructed by the accused taking recourse to artifices and
strategies. The public interest in ensuring the due
investigation of crime is protected by ensuring that the
inherent power of the High Court is exercised with caution.
That indeed is one--and a significant--end of the spectrum.
The other end of the spectrum is equally important : the
recognition by Section 482 of the power inhering in the High
Court to prevent the abuse of process or to secure the ends of
justice is a valuable safeguard for protecting liberty. The Code
of Criminal Procedure, 1898 was enacted by a legislature
which was not subject to constitutional rights and limitations;
yet it recognised the inherent power in Section 561-A. Post-
Independence, the recognition by Parliament [ Section 482
CrPC, 1973] of the inherent power of the High Court must be
construed as an aid to preserve the constitutional value of
liberty. The writ of liberty runs through the fabric of the
Constitution. The need to ensure the fair investigation of
crime is undoubtedly important in itself, because it protects at
one level the rights of the victim and, at a more fundamental
level, the societal interest in ensuring that crime is
investigated and dealt with in accordance with law. On the
other hand, the misuse of the criminal law is a matter of which
the High Court and the lower courts in this country must be
alive. In the present case, the High Court could not but have
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been cognizant of the specific ground which was raised before
it by the appellant that he was being made a target as a part of
a series of occurrences which have been taking place since
April 2020. The specific case of the appellant is that he has
been targeted because his opinions on his television channel
are unpalatable to authority. Whether the appellant has
established a case for quashing the FIR is something on which
the High Court will take a final view when the proceedings
are listed before it but we are clearly of the view that in failing
to make even a prima facie evaluation of the FIR, the High
Court abdicated its constitutional duty and function as a
protector of liberty. Courts must be alive to the need to
safeguard the public interest in ensuring that the due
enforcement of criminal law is not obstructed. The fair
investigation of crime is an aid to it. Equally it is the duty of
courts across the spectrum--the district judiciary, the High
Courts and the Supreme Court--to ensure that the criminal
law does not become a weapon for the selective harassment of
citizens. Courts should be alive to both ends of the
spectrum--the need to ensure the proper enforcement of
criminal law on the one hand and the need, on the other, of
ensuring that the law does not become a ruse for targeted
harassment. Liberty across human eras is as tenuous as
tenuous can be. Liberty survives by the vigilance of her
citizens, on the cacophony of the media and in the dusty
corridors of courts alive to the rule of (and not by) law. Yet,
much too often, liberty is a casualty when one of these
components is found wanting." (emphasis supplied)
8. Similarly, in the case of Suresh Kalmadi vs. CBI ,
reported as 2012(5) RCR (Cri.) 556 the Apex Court
held:-
"xx xx xx
However, the evidence to prove accusations is primarily
documentary in nature besides a few material witnesses. As
held in Sanjay Chandra (supra) if seriousness of the offence
on the basis of punishment provided is the only criteria, the
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Courts would not be balancing the Constitutional Rights but
rather recalibrating the scales of justice.
9. In Anil Kumar versus State of Punjab 2013(3)
RCR (Criminal) 854 it was held:-
"xx xx xx
9. The latest judgment cited by the learned counsel for the
petitioners is of the Hon'ble Supreme Court in Dipak
Shubhashchandra Mehta (supra) wherein the entire law has
been discussed. The Hon'ble Supreme Court in para No.18 in
Dipak Shubhashchandra Mehta's case (supra) has held as
under: -
"18. The Court granting bail should exercise its discretion in a
judicious manner and not as a matter of course. Though
at the stage of granting bail, a detailed examination of
evidence and elaborate documentation of the merits of
the case need not be undertaken, there is a need to
indicate in such orders reasons for prima facie
concluding why bail was being granted, particularly,
where the accused is charged of having committed a
serious offence. The Court granting bail has to consider,
among other circumstances, the factors such as a) the
nature of accusation and severity of punishment in case
of conviction and the nature of supporting evidence; b)
reasonable apprehension of tampering with the witness
or apprehension of threat to the complainant and; c)
prima facie satisfaction of the court in support of the
charge. In addition to the same, the Court while
considering a petition for grant of bail in a non-bailable
offence apart from the seriousness of the offence,
likelihood of the accused fleeing from justice and
tampering with the prosecution witnesses, have to be
noted. Considering the present scenario and there is no
possibility of commencement of trial in the near future
and also of the fact that the appellant is in custody from
31.03.2010, except the period of interim bail, i.e. from
15.09.2011 to 30.11.2011, we hold that it is not a fit
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case to fix any outer limit taking note of the materials
collected by the prosecution. This Court has repeatedly
held that when the undertrial prisoners are detained in
jail custody to an indefinite period, Article 21 of the
Constitution is violated. As posed in the Sanjay
Chandra's case (supra) we are also asking the same
question i.e. whether the speedy trial is possible in the
present case for the reasons mentioned above."
Further, the Hon'ble Supreme Court in the case
of Sanjay Chandra (supra) has held as under:- "
15. In the instant case, as we have already noticed that the
"pointing finger of accusation" against the appellants is
the seriousness of the charge'. The offences alleged are
economic offences which has resulted in loss to the
State exchequer. Though, they contend that there is
possibility of the appellants tampering witnesses, they
have not placed any material in support of the
allegation. In our view, seriousness of the charge is, no
doubt, one of the relevant considerations while
considering bail applications but that is not the only test
or the factor : The other factor that also requires to be
taken note of is the punishment that could be imposed
after trial and conviction, both under the Indian Penal
Code and Prevention of Corruption Act. Otherwise, if
the former is the only test, we would not be balancing
the Constitutional Rights but rather "recalibration of the
scales of justice." The provisions of Cr.P.C. confer
discretionary jurisdiction on Criminal Courts to grant
bail to accused pending trial or in appeal against
convictions, since the jurisdiction is discretionary, it has
to be exercised with great care and caution by balancing
valuable right of liberty of an individual and the interest
of the society in general. In our view, the reasoning
adopted by the learned District Judge, which is affirmed
by the High Court, in our opinion, a denial of the whole
basis of our system of law and normal rule of bail
system. It transcends respect for the requirement that a
man shall be considered innocent until he is found
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guilty. If such power is recognized, then it may lead to
chaotic situation and would jeopardize the personal
liberty of an individual. This Court, in Kalyan Chandra
Sarkar Vs. Rajesh Ranjan- (2005) 2 SCC 42, observed
that "under the criminal laws of this country, a person
accused of offences which are non-bailable, is liable to
be detained in custody during the pendency of trial
unless he is enlarged on bail in accordance with law.
Such detention cannot be questioned as being violative
of Article 21 of the Constitution, since the same is
authorized by law. But even persons accused of
nonbailable offences are entitled to bail if the Court
concerned comes to the conclusion that the prosecution
has failed to establish a prima facie case against him
and/or if the Court is satisfied by reasons to be recorded
that in spite of the existence of prima facie case, there is
need to release such accused on bail, where fact
situations require it to do so."
10. In Sanjay Chandra's case (supra) also the Hon'ble
Supreme Court has considered the entire law on the
subject.
11. I am conscious of the fact that serious allegations of
connivance and causing financial loss to the State
exchequer have been levelled against the petitioners.
There are also allegations of dishonesty, forgery,
cheating and charges under various Sections of IPC and
Prevention of Corruption Act have been levelled.
However, if the petitioners are allowed to be kept in
judicial custody for indefinite period then Article 21 of
the Constitution is violated. It is the fundamental right
of every person in judicial custody for speedy trial. In
the facts of the present case, it is to be seen whether
keeping the petitioners in custody is justified specially
when some of the persons who have been nominated
during investigation are yet to be arrested and challan
against them is to be presented on their joining
investigation.
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12. Second argument is regarding tampering with the
evidence. I have considered this contention also. The
entire case is based on the documentary evidence i.e.
forged vouchers, bills and thereafter the payment to
various contractors and others in connivance with the
Government officials. This is not a case based on the
oral testimony of individuals. No doubt the allegations
against the petitioners are serious in terms of the alleged
huge loss caused to the State exchequer, that by itself
should not deter this Court from enlarging the accused
on bail specially when they are already behind bars for
about seven or more months. I do not see any good
reason to continue the judicial custody of the petitioners
that too after completion of investigation and
submission of chargesheets/supplementary charge-
sheets. The loss to the State exchequer have been
levelled against the petitioners. There are also
allegations of dishonesty, forgery, cheating and charges
under various Sections of IPC and Prevention of
Corruption Act have been levelled. However, if the
petitioners are allowed to be kept in judicial custody for
indefinite period then Article 21 of the Constitution is
violated. It is the fundamental right of every person in
judicial custody for speedy trial. In the facts of the
present case, it is to be seen whether keeping the
petitioners in custody is justified specially when some
of the persons who have been nominated during
investigation are yet to be arrested and challan against
them is to be presented on their joining investigation.
13. In view of this, I am of the view that petitioners are
entitled to grant of bail pending trial on stringent
conditions in order to allay the apprehension of the
investigating agency. It is not necessary to canvass and
go into the details of various other issues canvassed by
learned counsel for the parties and the cases relied upon
by learned counsel for the petitioners in support of their
contentions. I have not expressed any opinion on the
merit of the case."
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10. Investigation(s) stand concluded and challan
stand presented in all the cases. Proceedings stand
stayed by a Coordinate Bench of this Court in
quashing petition i.e. CRM-M-38978-2023 in FIR
No.544 dated 29.07.2016, registered for offences
punishable under Sections 406, 419, 420, 465, 467,
468 and 471 of IPC (Sections 409 and 120-B of IPC
added later on) at Police Station Police Station Sirsa
City, District Sirsa.
11. Counsel for the State is not in a position to dispute
the aforesaid fact.
12. Keeping in view the aforesaid facts, without
commenting on the merits of the case, the
incarceration suffered by the petitioners and the fact
that investigation already stands concluded and in
view of dictum of law laid down in Satender Kumar
Antil's case (supra), the present petitions are allowed.
The petitioners are ordered to be released on bail on
their furnishing bail bonds/surety bonds to the
satisfaction of the Trial Court/Duty Magistrate
concerned.
13. Needless to say the Trial Court shall be at liberty
to impose any other condition in accordance with law.
Surrender of passport by the petitioners shall be a pre-
condition for grant of bail. Apart from that the
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petitioners shall also file an undertaking before the
Trial Court to the effect that he shall not
change/alter/modify any documents/contact addresses/
contact numbers and the formation of the
companies/firms which are under investigation and
are owned by the petitioners. In case the petitioners
change their mobile numbers, they shall inform the
agency of such change.
14. Needless to say nothing recorded herein shall be
construed to be an expression of an opinion on the
merits of the case.
15. A photocopy of this order be placed on the files of
other connected cases."
4. Counsel further submits that even the
proceedings under the FIR stand stayed for the reason
that VAT Act being a complete code in itself, FIRs
ought not have been registered for offences
punishable under the Penal Code. Further submits that
case of the petitioner is even better than Amit Bansal.
5. Counsel for the State however submits that the
petitioner cannot claim that he is at better footing
though, at the most he can claim parity.
6. Having heard counsel for the parties and keeping in view
the observations made in order dated 08.02.2024 and the admitted
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position by the State counsel that the petitioner shall be at par with
Amit Bansal, the present petition is allowed. Petitioner is ordered
to be released on regular bail on his furnishing bail/surety bonds to
the satisfaction of the Ld. Trial Court/Duty Magistrate, concerned.
7. Needless to say nothing recorded herein shall be construed
to be an expression of an opinion on the merits of the case."
3. Keeping in view the parity and the incarceration already
suffered by the petitioner, the present petition is allowed. Petitioner is
ordered to be released on regular bail on his furnishing bail/surety bonds
to the satisfaction of the Ld. Trial Court/Duty Magistrate, concerned.
4. Needless to say nothing recorded herein shall be construed
to be an expression of an opinion on the merits of the case.
02-05-2024 (PANKAJ JAIN)
spn
JUDGE
Whether speaking/reasoned Yes
Whether Reportable No
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