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TMI Blog2018 (9) TMI 2053X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestors and help them in recovery of the money. It can be a presumption but the detention of accused in the jail would not aid the recovery. It has also been held that the purpose is not to recover the amount but to punish the accused persons. The offence is triable by Magistrate; the custody which is more than 11 months; even a single witness has not been examined; the delay is there on the part of the complainant himself as alternative remedy has already been availed and no useful purpose would be served by keeping the petitioner in custody - Giri Raj is directed to be released on regular bail on his furnishing bail/surety bonds to the satisfaction of the trial Court - Petition allowed. - CRM-M No. 19535 of 2018 - - - Dated:- 14-9-2018 - Daya Chaudhary, J. For Appellant: P.S. Ahluwalia, Advocate For Respondents: Manish Dadwal, A.A.G. and Lokesh Sharma, Advocate JUDGMENT Daya Chaudhary, J. 1. Petitioner-Giri Raj has filed the present petition under section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail to him in case FIR No. 287 dated 05.10.2016 registered under Sections 406, 420 and 120-B of the Indian Penal Code at Police St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the offence is triable by the Magistrate. No useful purpose would be served by keeping the petitioner in custody. 3. Learned counsel for the petitioner has relied upon the judgments of Hon'ble the Apex Court in case Sanjay Chandra v. CBI 2011 (4) RCR (Criminal) 898, Dipak Shubhashchandra Mehta v. C.B.I and another 2012(1) RCR (Criminal) 870, judgment of this Court in case Sham-slier Singh v. State of Punjab passed in CRM-M No. 1685 of 2014 decided on 10.03.2014 as well as judgments of Delhi High Court in case Suresh Kalmadi v. CBI 2012(1) CCR 323, Mahesh Kumar v. Central Bureau of Investigation 2014(8) RCR (Criminal) 1650 in support of his arguments. 4. Learned State counsel has opposed the submissions made by learned counsel for the petitioner. He also submits that serious allegations of cheating and misappropriation of amount are there and the period of custody undergone by the petitioner is less and also the fact that it is a second petition and the petitioner is not entitled for bail. 5. Heard the arguments of learned counsel for the petitioner as well as learned State counsel. I have also perused the contents of the FIR as well as other documents available on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l liability can be fastened upon the petitioner. The petitioner has acted as an agent on behalf of Ram Dev International Limited and cannot be held vicariously liable. It is also not disputed that the amount has been disbursed to various commission agents as has been admitted in the statements recorded under Section 161 Cr.P.C., 1973 The complainants have also availed the remedy by incorporating themselves as operational creditors of Ram Dev International Limited and the insolvency proceedings against the company are pending before the National Company Law Tribunal, Delhi for recovery of the amount. Meaning thereby, the complainants are also availing the remedy of recovery of amount due towards Ram Dev International Limited. The petitioner is in custody since 01.10.2017. The challan has been presented and charges have been framed. The offence is triable by the Magistrate. There are total 66 witnesses and even a single witness has not been examined so far. In spite of undertaking given before this Court, the complainant has not appeared before the trial Court. The case was adjourned on three occasions but still he has not appeared. 10. In a landmark decision in Sanjay Chandra v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 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. 47. In the view we have taken, it may not be necessary to refer and discuss other issues canvassed by the learned counsel for the parties and the case laws relied on in support of their respective contentions. We clarify that we have not expressed any opinion regarding the other legal issues canvassed by the learned counsel for the parties. 48. In the result, we order that the appellants be released on bail on their executing a bond with two solvent sureties, each in a sum of ₹ 5 lakhs to the satisfaction of the Special Judge, CBI, New Delhi on the following conditions : (a) The appellants shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him to disclose such facts to the Court or to any other authority. (b) They shall remain present before the court on the dates fixed for hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ccusation and severity of punishment in case of conviction and the nature of supporting evidence; reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and prima facie satisfaction of the court in support of the charge are to be taken into consideration. In addition to aforementioned ingredients, the Court is to see the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses. 13. It has been held by Delhi High Court in case Anil Mahajan v. Commissioner of Customs 2000(3) RCR (Criminal) 242 that in case, the Economic offence of grave nature is there, the bail cannot be refused simply on the ground that it was a case of grave economic offence. 14. In Gudikanti Narasimhulu and Others v. Public Prosecutor, reported in AIR 1978 Supreme Court 429, V.R. Krishna Iyer, J., observed that Bail or Jail - at the pre-trial or post conviction stage - largely hinged on judicial discretion. The learned Judge held that personal liberty was too precious a value of our constitutional system recognised under Article 21 that the crucial power to negate it was a great trust exercisable not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in which case bail should be granted and in which case it should be refused is a matter of discretion. The court found it interesting to note that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King Emperor, AIR 1924 Calcutta 476, that the object of bail was to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused was whether it was probable that the party would appear to take his trial and that it was indisputable that bail was not to be withheld as a punishment. The Supreme Court also referred to the observation of the Allahabad High Court in K.N. Joglekar v. Emperor, AIR 1931 Allahabad 504, that Section 498 of the Old Code which corresponds to Section 439 of the New Code, conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. The Allahabad High Court had also observed that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich are as under:- (a) Personal liberty is too precious a value of our Constitutional System recognised under Article 21 that the crucial power to negate it is a great trust exercisable not casually but judicially, with lively concern for the cost to the individual and the community. Deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objectives of society specified in the Constitution. (b) As a presumably innocent person the accused person is entitled to freedom and every opportunity to look after his own case and to establish his innocence. A man on bail has a better chance to prepare and present his case than one remanded in custody. An accused person who enjoys freedom is in a much better position to look after his case and properly defend himself than if he were in custody. Hence grant of bail is the rule and refusal is the exception. (c) The object of bail is to secure the attendance of the accused at the trial. The principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the event of the Court punishing him with imprisonment. (d) Bail is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed; a reasonable apprehension of witnesses being influenced and evidence being tampered with; the larger interest of the public or the State; the position and status of the accused with reference to the victim and the witness; the likelihood of the accused fleeing from justice; the likelihood of the accused repeating the offence; the history of the case as well as the stage of investigation etc. In view of so many variable factors the considerations which should weigh with the Court cannot be Exhaustively set out. However, the two paramount considerations are: (i) the likelihood of the accused fleeing from justice and (ii) the likelihood of the accused tampering with prosecution evidence. These two considerations in fact relate to ensuring a fair trial of the case in a Court of justice and hence it is essential that due and proper weight should be bestowed on these two factors. (j) While exercising the power under section 437 of the Criminal Procedure Code, 1973 in cases involving non-bailable offences except cases relating to offences punishable with death or imprisonment for life, judicial discretion would always be exercised by the Court in favour of granting bail subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sary to ensure that the accused will be available for facing trial. It cannot be said that an accused will not be granted bail because he is a foreign national. 19. It has also been held in various judgment of Hon'ble the Apex Court as well as of this Court that criminal prosecution is not a proceeding for recovery of the dues of the investors but is meant for punishing the guilty. In case of economic offences, the object of criminal prosecution is to protect the investors and help them in recovery of the money. It can be a presumption but the detention of accused in the jail would not aid the recovery. It has also been held that the purpose is not to recover the amount but to punish the accused persons. 20. Hon'ble the Apex Court in Sanjay Chandra's case (supra) has held in para Nos. 27 and 28 as under:- 27. In 'Bihar Fodder Scam', this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period of more than six months as on the date of passing of the order, was of the view that the further detention of the appel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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