IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.P.(M) Nos.116, 130 and 131 of 2011. Judgment Reserved on: 27.04.2011 Date of decision: 04.05.2011. 1. Cr.M.P.(M) No.116 of 2011. Kewal Krishan Indoria … …Petitioner Versus State of H.P. … …Respondent 2. Cr.M.P.(M) No.130 of 2011. Akhash Kumar … …Petitioner Versus State of H.P. … …Respondent 3. Cr.M.P.(M) No.131 of 2011. Subhash Chand Indoria … …Petitioner Versus State of H.P. … …Respondent Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner(s): Mr.Deepak Kaushal, Advocate. For the Respondent: Mr.J.K. Verma, Deputy Advocate General with Ms.Shubh Mahajan, Deputy Advocate General. Dev Darshan Sud,J. All these three petitions are being disposed of by a common order as they arise out of the same F.I.R. 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 2. F.I.R. No.3/2011, dated 9.2.2011, under Sections 8, 13(1)(d) of the Prevention of Corruption Act, 1988 and 120-B IPC has been registered in Police Station SV & ACB, Kullu. The case is still at its investigation stage. Cr.M.P.(M) No.116 of 2011. 3. The allegations against the petitioner Shri Kewal Krishan Indoria, who is a member of the Police Force in Himachal Pradesh (now under suspension), are that one Ramesh Chander Volga was acting for and on behalf of the petititoner, who at the relevant time was Superintendent of Police, Kullu. He collected money on behalf of the petitioner and on his instructions during 2009 and 2010, dispersed the money by sending to his relatives or other persons. The genesis of the case, relates back to somewhere in July, 2010 when telephone conversation between the petitioner, Ramesh Volga and Corporate Officers were intercepted by the State CID. A preliminary report was submitted by the Inquiry Officer in complaint No.46, dated 9.12.2010, on the allegations that Shri Ramesh Chander Volga, who is residing in 6/11 Gandhi Nagar, Chander Complex, Kullu, is a businessman who is demanding and accepting illegal gratification from people for getting their work done from Government Departments/Officers/Officials whom he claims are very intimately known to him. He deposited some of the money, which he collected, in his personal account and some in the accounts of the relatives of the petitioner 3 in different Banks at the instance of so called Government Officers/Officials in order to avoid detection. The report then proceeds that after a fact finding inquiry, the police, started investigating the case and seized a number of documents/cheques etc. which according to it had been used in transferring/shuttling the money from one account to other. In particular, reference is made to a communication dated 22.5.2010 addressed by the Superintendent of Police, Kullu to the General Manager, A.D. Hydro Power Project, Prini, Tehsil Manali, District Kullu sending a bill of Rs.5,41,897/-. On a copy of this bill an endorsement has been made that the amount be paid to the Superintendent of Police, Kullu. According to the investigation, this Force was never deployed at A.D. Hydro Power Project and the payment was made to this Ramesh Chander Volga by means of two cheques which he deposited in his account for further payment etc. It is the case of the prosecution that this is the tip of the iceberg and that the police is in possession of leads which show that the petitioner herein has been siphoning of large amounts of money as illegal gratification through this Ramesh Chander Volga and others. Before proceeding with the case further, I must notice that this Ramesh Chander Volga has been granted bail by the learned Special Judge, Kullu, as also Shri Tajinder Kumar Trehan, a Corporate Executive 4 working with AD Hydro Power Project, which orders have not been challenged by the prosecution. 4. The petitioner prays for directions for being released on bail in case of his arrest which is opposed by the prosecution alleging that it is the custodial interrogation of the petitioner which would yield results. The case urged on behalf of the petitioner is that it is a false case which has been filed. In case there were intercepts in the month of July, 2010, where was the occasion for the police to wait till December to conduct a preliminary inquiry and thereafter register the FIR. It is also submitted that two of the persons, namely, Shri Ramesh Chander Volga and Shri Tajinder Kumar Tarehan, who is an executive of A.D. Hydro Power Project and who were supposed to be paying/collecting large amount to/for the petitioner, are on bail and in case any interrogation was required, it has already been done from these two persons and now, at this stage, the custodial interrogation of the petitioner is not required. 5. Adverting to the law, learned counsel for the petitioner places reliance on the judgment of the Supreme Court in Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others, (2011)1 SCC 694, which has considered the entirety of the principles applicable for grant of anticipatory bail. In particular, he refers to the directions issued by the Supreme Court viz.:- 5 “Scope and ambit of anticipatory bail 109. A good deal of misunderstanding with regard to the ambit and scope of Section 438 CrPC could have been avoided in case the Constitution Bench decision of this court in Sibbia's case1 (1Gurbaksh Singh Sibbia v.State of Punjab, (1980)2 SCC 565) was correctly understood, appreciated and applied. This Court in the Sibbia's case1 laid down the following principles with regard to anticipatory bail: (a) Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India. (b) Filing of FIR is not a condition precedent to exercise of power under section 438. (c) Order under section 438 would not affect the right of police to conduct investigation. (d) Conditions mentioned in section 437 cannot be read into section 438. (e) Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would "not justify the conclusion that the power must be exercised in exceptional cases only." Powers are discretionary to be exercised in light of the circumstances of each case. (f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be re- examined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant. 6 110. The Law Commission in July 2002 has severely criticized the police of our country for the arbitrary use of power of arrest which, the Commission said, is the result of the vast discretionary powers conferred upon them by this Code. The Commission expressed concern that there is no internal mechanism within the police department to prevent misuse of law in this manner and the stark reality that complaint lodged in this regard does not bring any result. The Commission intends to suggest amendments in the Criminal Procedure Code and has invited suggestions from various quarters. Reference is made in this Article to the 41st Report of the Law Commission wherein the Commission saw `no justification' to require a person to submit to custody, remain in prison for some days and then apply for bail even when there are reasonable grounds for holding that the person accused of an offence is not likely to abscond or otherwise misuse his liberty. Discretionary power to order anticipatory bail is required to be exercised keeping in mind these sentiments and spirit of the judgments of this court in Sibbia's case1 and Joginder Kumar v. State of U.P. and Others (1994) 4 SCC 260. Relevant consideration for exercise of the power 111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory 7 bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case1 that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 CrPC by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or the other offences. 8 (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her. (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people. (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and 9 circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record. 114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the Judge concerned, after consideration of entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available. Irrational and Indiscriminate arrest are gross violation of human rights. 115. In Joginder Kumar's case27 a three Judge Bench of this Court has referred to the 3rd report of the National Police Commission, in which it is 10 mentioned that the quality of arrests by the Police in India mentioned power of arrest as one of the chief sources of corruption in the police. The report suggested that, by and large, nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure of the jails.” (pp.735-737) He submits that since this Court had granted protection from arrest to the petitioner on 28.2.2011, from that date onwards till today, there has been no change in circumstances nor the police is able to place anything on record to show the involvement of the petitioner herein and in these circumstances, denial for direction of grant of anticipatory bail would be against law. He places reliance on the judgment of the Supreme Court in Mahant Chand Nath Yogi and Another vs. State of Haryana, (2003)1 SCC 326. 6. Learned Deputy Advocate General submits that in case of economic offences, it is custodial interrogation which reveals the source of the funds and the manner in which the parties operate. He places reliance on the judgment in State Rep.by the C.B.I. vs. Anil Sharma, (1997)7 SCC 187, wherein the Court held:- “6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation oriented than questioning a suspect 11 who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of 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. 7. The High Court has approached the issue as though it was considering a prayer for granting regular bail after arrest. Learned single Judge of the High Court reminded himself of the principle that "it is well-settled that bail and not jail is a normal Rule" and then observed thus : "Unless exceptional circumstances are brought to the notice of the Court which may 12 defeat the proper investigation and fair trial, the Court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life. In the present case, no such exceptional circumstances have been brought to the notice of this Court which may defeat proper investigation to decline bail to the applicant." 8. The above observations are more germane while considering an application for post-arrest bail. Consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest. At any rate learned single Judge ought not have side- stepped the apprehension expressed by the CBI (that respondent would influence the witnesses) as one which can be made against all accused persons in all cases. The apprehension was quite reasonable when considering the high position which respondent held and in the nature of accusation relating to a period during which he held such office.” (pp.189-190) 7. He urges that the same principle has been reiterated by the Court in State of A.P. vs. Bimal Krishna Kundu and Another, (1997)8 SCC 104 holding:- “12. We are strongly of the opinion that this is not a case for exercising the discretion under Section 438 in favour of granting anticipatory bail to the respondents. It is disquieting that 13 implications of arming respondents, when they are pitted against this sort of allegations involving well orchestrated conspiracy, with a pre- arrest bail order, though subject to some conditions, have not been taken into account by the learned single Judge. We have absolutely no doubt that if respondents are equipped with such an order before they are interrogated by the police it would greatly harm the investigation and would impede the prospects of unearthing all the ramifications involved in the conspiracy. Public interest also would suffer as a consequence. Having apprised himself of the nature and seriousness of the criminal conspiracy and the adverse impact of it on "the career of millions of students", learned single Judge should not have persuaded himself to exercise the discretion which Parliament had very thoughtfully conferred on the Sessions Judges and the High Courts through Section 438 of the Code, by favouring the respondents with such a pre-arrest bail order. (pp.107-108) 8. In Directorate of Enforcement and Another vs. P.V. Prabhakar Rao, (1997)6 SCC 647, the Supreme Court holds:- “11. Learned Single Judge has taken into account the fact that all other accused arrested in connection with this case have been released on bail. But they were released on bail only on the failure of the investigating 14 agency to complete the investigation within the time prescribed in the proviso to Section 167(2) of the Code. How could this respondent take advantage of that fact? We cannot overlook that the respondent too has contributed to the non-completion of the investigation. Completion of investigation could be achieved only by interrogating all the persons involved as well as acquainted with the matter and after collecting all material evidence procurable. So the learned Single Judge should never have counted this point in favour of granting anticipatory bail to the respondent. 12. The most glaring feature which even the respondent did not repudiate is the magnitude of the criminal conspiracy hatched, the ingenuity with which the cabal was orchestrated and the meticulousness with which it was implemented and the colossal amount of foreign exchange siphoned off from the country. It is not disputed that whomsoever perpetrated this grave economic offence deserves to be dealt with sternly under law. 13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of 15 anticipatory bail under Section 438 of the Code. (p.650) 9. Lastly, reliance is placed to the decision in the case of Dukhishyam Benupani, Asstt.Director, Enforcement Directorate (FERA) vs. Arun Kumar Bajoria, (1998)1 SCC 52, holding:- “8. This Court has pointed out time and again that considerations to be weighed with the Court while dealing with a prayer for pre-arrest bail order are materially different from a post-arrest bail application. [vide Pokar Ram v. State of Rajasthan, AIR 1985 SC 969, State rep. by the CBI v. Anil Sharma, (1997) 7 JT (SC) 651 : (1997 AIR SCW 3722) and The State of Andhra Pradesh v. Bimal Krishna Kundu, (1997) 8 JT (SC) 382].” (p.55) 10. Learned Deputy Advocate General submits that unless the petitioner is subjected to sustained custodial interrogation, no material progress will be made. He submits that during the time when the petitioner was under protection of this Court, he did not cooperate and was leading the investigation in circles. 11. On the totality of the facts and circumstances of the case and considering the fact that there are many loose ends to be tied up in the investigation, the offences alleged are of a serious 16 nature, I do not think that it is a fit case, at this stage, for release of the petitioner on anticipatory bail. He has been accused of serious economic offences. I need not go into the entire catacomb of facts of the manner in which the funds have been pushed from account to account. 12. On the submission made by the learned counsel for the petitioner that two other accused, namely; Ramesh Chander Volga and Tajinder Kumar Tarehan have been released on bail and their orders are not challenged, the entire case being built up on their acts, custodial interrogation of the petitioner is not required, all that I need say is that the doctrine of parity, as urged in these facts, cannot be invoked. I do find that investigation has been lackadaisical and casual. There is some substance in what the petitioner urges. I may also add that since the offences are serious economic offences, I do not find the involvement of Tax Authorities to investigate the matter which was imperative, but, I need not say anything further and leave it there. The State cannot be denied the custody of the petitioner for sustained custodial interrogation. The fear of the petitioner that he will be subjected to third degree methods is not justified. 13. In these circumstances, this petition is rejected. It is directed that the petitioner, during the time in custody, shall be subjected to medical 17 examination everyday to ascertain as to whether he has been subjected to any custodial violence/torture. Needless to say that the petitioner herein shall be produced before the Magistrate for remand to police custody/judicial custody in accordance with law, such prayer when made shall be considered by the learned Judge independently on his own without being in any manner influenced by the observation made by me in this order. It will be open to the petitioner to apply for regular bail in accordance with law. One last point was urged by the learned counsel for the petitioner relating to the intercepts of the telephone conversations and their legality. I am not going into that so far as the present petition is concerned. It will be open to the petitioner to urge these points by filing appropriate petition at the appropriate time. Cr.M.P.(M) Nos.130 and 131 of 2011. 14. In so far as the other two petitioners, namely, Akhash Kumar and Subhash Chand Indoria, are concerned, I do not find that the submissions made on behalf of the State for custodial interrogation are justified, at this stage. 15. In these circumstances, each of the other petitioners, namely; Akhash Kumar and Subhash Chand Indoria, are released on bail and it is directed:- (a) That each of the petitioner shall furnish a personal bond in the sum of 18 Rs.one lac with one surety in the like amount to the satisfaction of the Arresting Officer. (b) That they shall undertake that they will not interfere with the progress of the investigation, tamper with the prosecution evidence, threat, overawe, influence, intimidate the prosecution witnesses or in any manner attempt to do so either directly or indirectly. (c) That the petitioners shall undertake that they shall not abscond from the jurisdiction of the learned Special Judge, Kullu and shall not obstruct the smooth progress of the trial nor shall they in any manner obstruct the investigation. (d) That the petitioners shall further undertake to be present for investigation as and when called for. (e) That it will be open to the prosecution to apply for custodial interrogation of the petitioners in case so desired. 19 (f) That the petitioners shall apply for bail afresh when challan is put up in Court. 16. In case of violation of any of these conditions, the bail shall stand forfeited and the case will be referred to this Court immediately. The petitioners shall be liable to be arrested and taken into custody forthwith. 17. That it will be open to the prosecution to apply for such other or further condition(s) which may be required to be imposed in case so required in the interest of justice and in the facts and circumstances of the case. For this purpose it will be open to the State to move