IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No1032 of 2019 a/w . Cr.MP(M) No.1033 of 2019 Date of Decision: 24.6.2019 1. Cr.MP(M) No.1032 of 2019 [ENTITY] Petitioner Versus [ENTITY] Respondent 2. Cr.MP(M) No.1033 of 2019 [ENTITY] r Petitioner Versus [ENTITY] Respondent Coram: Hon'ble Mr. Justice [ENTITY], Judge. Whether approved for reporting? 1 For the Petitioner(s): Mr. [ENTITY], Advocate. For the Respondent: Mr. [ENTITY] & Mr. [ENTITY] Additional Advocate Generals, with Mr. [ENTITY], Deputy Advocate General. [ENTITY], Judge (oral):
Since both the bail petitions arise out of the same FIR, they are being taken up together for final disposal by this Court.
Whether the reporters of the local papers may be allowed to see the judgment?
2. Sequel to order dated 10.06.2019, whereby both the bail petitioners were ordered to be enlarged on interim bail in .
the event of their arrest in [CASE NUMBER], dated 14.6.2017 under [SECTION], [SECTION], [SECTION], [SECTION] of [ACT], registered at Police Station, Chamba, District Chamba, Himachal Pradesh, ASI [ENTITY], has come present in Court alongwith the record. Mr. [ENTITY], learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned.
3. In nutshell, the case of the prosecution as emerge from the record/status report is that on 29.5.2017, Secretary, Navodaya Sikshan Sansthan, Chamba, Himachal Pradesh lodged a complaint with the Office of Superintendent of Police, Chamba, alleging misappropriation of funds by the present bail petitioners. Complainant alleged in the aforesaid complaint that both the petitioners, who were members of the Society forged resolution and on the strength of the same, misappropriated the amount collected by the society for children education. On the basis of aforesaid complaint, a formal FIR, as detailed hereinabove, came to be lodged against the present bail .
petitioners under [SECTION], [SECTION], [SECTION] and [SECTION] of [ACT].
4. Mr. [ENTITY], learned Additional Advocate General fairly states that pursuant to order dated 10th June, 2019 passed by this Court, both the bail petitioners have joined the investigation and they are fully cooperating with the investigation. Mr. [ENTITY], on the instructions of the Investigating Officer, who is present in Court, states that though custodial interrogation of the bail petitioners may not be required at this stage, but they be directed to handover the record available with them, enabling the Investigating Officer, to conclude the investigation.
5. Though, there appears to be specific allegation contained in the FIR that both the bail petitioners, who were members of the Navodaya Sikshan Sansthan, Chamba, not only forged the resolution passed by the Sansthan, but they also procured permission under [SECTION] of the [ACT] by misstating the facts, but guilt, if any, of bail petitioners in this regard, is yet to be proved in accordance by law by the prosecution. Moreover, it has been fairly stated by .
the investigating Officer that pursuant to order dated 10.6.2019, both the bail petitioners have already joined the investigation and they are fully cooperating with the investigation and as such, no fruitful purpose would be served in case bail petitioners are sent for custodial interrogation.
6. In view of the aforesaid fair submission having been made by Mr. [ENTITY], learned Additional Advocate General, this Court sees no reason for custodial interrogation of the bail petitioners and as such, they deserves to be enlarged on bail.
7. Hon'ble Apex Court as well as this Court in catena of cases have held that freedom of an individual cannot be curtailed for indefinite period during the pendency of the trial because one is deemed to be innocent until his/her guilt, is not proved in accordance with law. In the case at hand, guilt, if any, of the bail petitioners is yet to be proved in accordance with law by leading cogent and convincing evidence. Apprehension expressed by learned Additional Advocate General that in the event of petitioners' being enlarged on bail, they may flee from justice, can be best met by putting bail petitioners to stringent .
conditions, as has been fairly stated by learned counsel representing the bail petitioners.
8. Recently, the Hon'ble Apex Court in [CASE NUMBER], [PRECEDENT].,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 firsttime 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] of the [ACT]. An equally soft approach to incarceration has been taken by Parliament by inserting [SECTION] in the [ACT].
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 [SECTION] of the [ACT] and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In ReInhuman Conditions in 1382 Prisons
9. The Hon'ble Apex Court in [PRECEDENT] .
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 [ACT] 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. 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 r to 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.
11. The Hon'ble Apex Court in [PRECEDENT], 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. Consequently, in view of the above, order dated 10.6.2019, passed by this Court, is made absolute, subject to their furnishing personal bond in the sum of Rs. two lac with two local sureties in the like amount each to the satisfaction of the Investigating Officer, 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.
13. It is clarified that if the petitioners misuse their liberty or violates any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.
14. 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 these application alone.
The bail petitions stand disposed of accordingly.
Copy dasti.
([ENTITY]), Judge 24th June, 2019 (shankar)