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TMI Blog2020 (7) TMI 615X X X X Extracts X X X X X X X X Extracts X X X X ..... case M/s Heico Electronics, and would therefore not have been available with the applicant. None of the grounds for continuing the applicants judicial custody as an undertrial is made-out in the present case - That insofar as the applicant committing any further offence is concerned, in this case that ground is purely speculative as is the ground of possible inducement, threat or promise being extended to any prosecution witness or other such person - That insofar as the possibility of the applicant absconding from trial, that ground also appears to be farfetched and can be taken-care of by imposing appropriate conditions of bail. This court is persuaded to admit the applicant to regular bail subject to conditions imposed. - Bail Appln.-913/2020 - - - Dated:- 18-6-2020 - Anup Jairam Bhambhani, J. JUDGMENT Anup Jairam Bhambhani, The applicant is an accused in case FIR No. 88/2015 dated 30.06.2015 registered under sections 420/467/468/471/120-B of the Indian Penal Code, 1860 (IPC) at PS : Economic Offences Wing (EOW), Crime Railways, Delhi and has been in judicial custody since 22.02.2020. By way of the present application, the applicant seeks regular bail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vi Kumar in favour of the complainant and registered at the concerned Sub-Registrar of Assurances, Delhi. The sale deed is alleged to be fake in that it pertains to a non-existent property ; and it is also alleged to be forged, inasmuch the complainant denies his signature/thumb impression on the document. The concerned Sub-Registrar of Assurances has also said that the sale deed is not on the official records of that office. 6. It is nobodys case however that the applicant has signed the sale deed. The allegation is that the loan amount of ₹ 46,50,000/- was credited by the bank to the complainants account; and was then disbursed to an account in the name of Ravi Kumar; who then further credited an amount of ₹ 46,40,000/- (i.e. ₹ 10,000/- less than the loan amount) to the account of M/s Heico Electronic, which is the sole proprietorship firm of Ravi Kumar, which is engaged in the trade of electronic goods. Furthermore, it is alleged that on 07.05.2014, the sum of ₹ 46,40,000/- was transferred from the account of M/s Heico Electronics to the account of M/s Harshit Enterprises, which is the applicants sole proprietorship firm at the Development Credit Bank, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s supplied) 10. Then again, the applicant moved yet another anticipatory bail application which was disposed of vid order dated 27.09.2017 with the following observations: Sh. Taneja has delivered the original signed office copies of invoices dated 28.03.2014, copies whereof are available on page 19 20 of the present bail application, to the IO, who proposes to provide him the requisite seizure memo. Since IO needs to investigate the matter about veracity of these invoices and other limbs connected thereto, it is deemed appropriate that in the meanwhile the applicant be released on bail till 31.10.2017 in the event of his arrest in this case, on furnishing personal bond in the sum of ₹ 50,000/- and one surety of like amount to the satisfaction of arresting officer/SHO. (Underscoring supplied, bold in original) 11. According to the State, after the term or validity of order dated 27.09.2017 ran-out on 31.10.2017, the applicant went missing and did not join or cooperate with the investigation. It is the States contention that in view of the applicants abscondence, appropriate application was moved to have him declared proclaimed offender and upon his arrest on 22.02. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c. that the sum of ₹ 46,40,000/- received by the applicant in the account of his sole proprietorship firm from M/s Heico Electronics was towards payment of goods supplied to M/s Heico Electronics under invoice/s dated 28.03.2014 and towards other dues, which money was received on 07.05.2014; and the applicant had nothing to do with the loan transaction that is the subject matter of the complainants allegations; d. that the applicant did not abscond and in fact he joined investigation several times when called ; but he was never summoned thereafter for investigation. As it appears from the 5 FIR No. 405/2015 28.04.2015 Vivek Vihar, Delhi Under sections 420/468/471/120- B IPC Charge-sheet filed on 22.04.2019; declared proclaimed offender 6 FIR No. 794/2015 17.08.2015 Ghazipur, Delhi Under sections 406/420/467/468/ 471/120-B IPC Pending investigation record, between 2017 and 2019 the I.O. attempted to serve notice on the applicant to join investigation at the applicants (erstwhile) office address in Vivek Vihar, whereas the applicant had closed that office; but service was never attempted at the applicants residential address in Preet Vihar, which address was available with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Chidambaram vs. CBI , to point-out that where the 4 accused is in custody, while co-accused have been granted bail and charge-sheet has been filed and the allegations of influencing witnesses are without basis, bail should be granted ; (e) Aman Verma vs. State , to submit that incarceration of an 5 accused causes deprivation of his right to legal defence; (f) Moti Ram v. State of M.P , to say that the consequences of 6 pre-trial detention are grave ; and that jailed defendants are prevented from contributing to the preparation of their defence, which burden falls on their innocent family members; (g) Babu Singh v. State of U.P. , to argue that a person on bail 7 has a better chance of preparing and presenting his case than one remanded in custody; and that unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible; 2019 SCC Online SC 1380; para 22 334 2011 SCC Online Del 5593; para 275 (1978) 4 SCC 47 ; para 146 (1978) 1 SCC 579 ; para 187 (h) Hussainara Khatoon (I) v. Home Secy., State of Bihar , to 8 submit that the discriminatory nature of the bail system becomes all the more acute by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idered the respective submissions. The facts highlighted by the appellant are that the case involves offence under Section 302 read with Sections 120-B/34, 147, 148 and 149 of the Penal Code, 1860. The accused has several criminal cases pending against him and has been named in the statement forming the basis of the FIR on the date of occurrence itself. .......... x x x x x x 8. On considering the submissions of the learned counsel for the parties. Having regard to the circumstances of this case, in our opinion, there has been no wrong or improper exercise of discretion on the part of the High Court in granting bail to the accused. ....... The offence alleged no doubt is grave and serious and there are several criminal cases pending against the accused. These factors by themselves cannot be the basis for refusal of prayer for bail. The High Court has exercised its discretion in granting bail to the accused Vikram Singh upon considering relevant materials. No ex-facie error in the order has been shown by the appellant which would establish exercise of such discretion to be improper. .......... (Emphasis supplied) Ashok Sagar v. State (supra) : 35. Authorities on bail, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mes, it was appreciated that 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 this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. 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 purpose of giving him a taste of imprisonment as a lesson. 24. In the instant case, we ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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. (Emphasis supplied) P. Chidambaram v. CBI (supra) : 22. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused; (v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280). There is no hard and fast ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration makes refusal of bail unreasonable and a policy favouring release justly sensible. (Emphasis supplied) 18. Upon a careful consideration of the allegations made, cross-referenced with the material on record, and after balancing the rights of the accused on the one hand, the victim on the other as also the role of the State as the proponent of public justice, at this stage when only the applicants bail plea is being considered, the following relevant aspects emerge: i. That typically, the rationale and reasons for permitting judicial custody of an undertrial accused are : (a) To prevent the accused from committing any further offence; (b) To conduct further investigation; (c) To prevent the accused from tampering with evidence or causing disappearance of evidence; (d) To prevent the accused from extending any inducement, threat or promise to the complainant/first informant or to the victim or to any other person, to dissuade them from disclosing facts to the investigating agency or the court or from deposing without fear or coercion during trial ; and/or (e) To ensure the presence of the accused to face trial. ii. That in the present case, which ari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h the I.O. during investigation, the I.O. may either not produce such material before the court or destroy it, so that it is not available to the accused for his defence ? While in theory, it is the duty of the I.O. to collect all evidence, whether inculpatory or exculpatory, during investigation and to place it before the court, it would be naive for a court to assume that this theory is put into practice by investigating agencies. It is also well within the rights of an accused to bring-out defence evidence only during trial. This is one of the reasons why, in a criminal trial, an accused is not required to furnish a written statement of his defence nor to file any affidavit disclosing the evidence he proposes to adduce during trial. While in a civil trial, it is impermissible to spring a surprise on an opposing party, there is no such bar on an accused in a criminal trial. The I.O. therefore cannot be heard to say that till the applicant hands- over to him every shred of evidence, which the I.O. think exists, the applicant should be kept in prison as an undertrial. v. That on another note, if it is the investigating agencys case that the applicant has not given all documents ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the investigation and non-bailable warrants were issued against the applicant, on the other hand, the Sessions Court was repeatedly granting anticipatory bail to the applicant from time-to-time, which appear to be irreconcilable positions. It is also seen from the status reports, that there was confusion as to the applicants current address as between Vivek Vihar and Preet Vihar. In view of the above, not much credence can be given to the States allegation that the applicant was evading investigation. In any case, now that a charge has been laid against the applicant under section 174A IPC for his alleged abscondence, the applicant would be required to defend himself against that charge during trial and will face the consequences for that. viii. That although the applicant has 05 other cases pending against him, the pendency of those cases in itself cannot be the basis for denying bail in this case (cf. Prabhakar Tiwari, supra); ix. That the offences alleged, which are essentially economic offences, although serious, again cannot be the sole basis of denying bail since the nature of offence has a limited role to play while examining a bail application (cf. Ashok Sagar and San ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the present case; xviii. That insofar as the applicant committing any further offence is concerned, in this case that ground is purely speculative as is the ground of possible inducement, threat or promise being extended to any prosecution witness or other such person; xix. That insofar as the possibility of the applicant absconding from trial, that ground also appears to be farfetched and can be taken-care of by imposing appropriate conditions of bail. 19. Upon a conspectus of the foregoing, this court is persuaded to admit the applicant to regular bail pending trial in case FIR No. 88/2015 dated 30.06.2015 registered under sections 420/467/468/471/120-B IPC at PS : Economic Offences Wing (EOW), Crime Railways, Delhi, on the following conditions: a. The applicant shall furnish a personal bond in the sum of ₹ 5,00,000/- with 01 surety of the like amount from a blood- relative, to the satisfaction of the Trial Court/Duty Magistrate; b. The applicant shall not leave the country without permission of the court and shall ordinarily reside in his place of residence as per prison records; c. The applicant shall surrender his passport to the Trial Court/ Duty Magistr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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