Allowed

Mohinder Bhardwaj v. State of Hp

Himachal Pradesh HC9 Sept 2024CRMPM/1680/2024

Case brief

AI extract

What is this about?

Regular bail sought by a wholesale medicine trader accused under forgery and cheating provisions for allegedly duping twelve youths of about Rs 13.72 lakh through forged job appointment letters. The court found no prima facie material linking the petitioner, noted six months' incarceration, completed investigation and bail to co-accused, and granted bail with conditions, holding that mere registra

What did the court decide?

Petitioner released on bail on personal bond of Rs 1,00,000 with one surety, subject to conditions including non-tampering with evidence/witnesses, disclosing contact details, not leaving country with

Mohinder Bhardwaj Vs State of Hp — Cheating and Forgery | Himachal Pradesh HC (2024)

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( 2024:HHC:8138 )

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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Cr.MP (M) No:1680 of 2024 Reserved on : 03.09.2024 Announced on: 09.09.2024

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__________________________________________________________ Mohinder Bhardwaj ...Petitioner Versus State of Himachal Pradesh …Respondent

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Coram

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Hon’ble Mr. Justice Ranjan Sharma, Judge

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1 Whether approved for reporting?

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For the petitioner: Mr. Servadman Rathore, Advocate. For the respondent: Mr. Hemant K. Verma, Deputy Advocate General.

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Ranjan Sharma, Judge

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Bail petitioner, Mohinder Bhardwaj, being

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in custody from 21.02.2024, has come up before this Court, seeking regular bail under Section 483 of the Bhartiya Nagarik Suraksha Sanhita, 2023 (hereinafter referred to as 'BNSS') , originating from FIR No.11 of 2024, dated 19.02.2024, under Sections 419, 420, 465, 467, 468, 469, 471, 120-B & 201 of the Indian Penal Code [hereinafter referred to as 'IPC] , registered at Police Station [East]

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1 Whether reporters of Local Papers may be allowed to see the judgment?

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Shimla, District Shimla, [H.P.].

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FACTUAL MATRIX:

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2. Case set up by Learned counsel Mr.

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Servadman Rathore, is that the petitioner has

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been roped in on the basis of false and bogus allegations and he has been falsely implicated. It is averred that the facts have been fabricated,

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concocted and are without basis and there is no connection of petitioner with the alleged accusation and even there is no evidence to connect the petitioner with the alleged offence.

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2(i). It is averred that the petitioner is alleged to have duped about 12 people by taking amount of Rs. 13,72,236/- [Rs Thirteen Lakha Seventy

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Two Thousand Two Hundred and Thirty Six] as fee

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and training expenses and allured them by offering jobs on out-source basis through Prakash Veer

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Chauhan, Sohan Lal and Suresh Kumar. It is averred that the allegations are totally wrong and denied whereas the true facts are that the petitioner

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has a wholesale medicine business in the name

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of M/s R.A. Medical Agencies at Solan and the petitioner being in whole sale business, has carried out financial transaction of Rs 2, 41,53,000/- [Rs Two Crores Forty-One Lakh, Fifty-Three Thousand] from his Bank accounts, towards the aforesaid business and therefore, the accusation against the petitioner is only to implicate him falsely.

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2(ii). The bail petitioner has filed several bail applications, whereby, the First Bail Application filed before the Learned Additional Chief Judicial Magistrate, Shimla, was dismissed on 27.02.2024 [Annexure P-1]; the Second Bail Application filed before the Learned Additional Sessions Judge-1, Shimla was dismissed on 16.03.2024 [Annexure P-2]; Third Bail Petition filed before this Court, Cr.MP(M) No.548 of 2024 was dismissed as withdrawn on 09.05.2024 [Annexure P-4]; and the Fourth Bail Application filed before Learned Additional Sessions Judge-1, Shimla was dismissed on 09.07.2024 [Annexure P-3] ; and the Fifth Application for Interim Bail i.e. Cr.MP(M) No. 548 of 2024 was

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( 2024:HHC:8138 )- 4 -

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dismissed as withdrawn on 26.07.2024 [Annexure P-4 colly].

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2(iii). It is averred in instant bail petition that the petitioner had participated in the investigation and now the investigation is complete and the police has presented the Challan-Final Police Report before Learned Additional Chief Judicial Magistrate concerned on 18.05.2024. It is averred that nothing is to be recovered by the police from the petitioner. The petitioner has furnished the undertakings that the petitioner shall not tamper with the evidence and shall not cause any inducement, threat or promise to any person acquainted with the facts of this case. Another undertaking has been given that the petitioner shall appear in the trial Court, on every day, as may be fixed by the Trial Court concerned.

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2(iv). It is further averred that the petitioner has been in custody for the last more than six months i.e. since 21.02.2024 and the continued detention has resulted in depriving the petitioner

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of personal liberty. Even trial is likely to take considerable time. It is pointed out that once other co-accused, namely, Prakash Veer Chauhan, Sohan Lal, Suresh Chander and Damandeep Singh have been enlarged on bail, by this Court, then the petitioner may be extended the similar treatment as the pre-trial incarceration on the basis of mere accusation is punitive when, the accusation is yet to be tested and proved during the trial.

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In the above background, the petitioner has prayed for enlargement of bail, in instant

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proceedings.

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PROCEEDINGS BEFORE THIS COURT:

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3. Upon listing of instant bail application,

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this Court issued notice on 02.08.2024, directing the State Authorities to file a Status Report. On 09.08.2024, the Learned State Counsel prayed for further time to file the Status Report and on listing of matter on 27.08.2024, the Status Report dated 27.08.2024, was taken on record

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and the copy thereof was supplied to Learned Counsel for the petitioner, who prayed for time to go through the Status Report and to make submissions. The matter was listed on 03.09.2024 and with consent of parties, the same was finally heard.

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STAND OF STATE AUTHORITIES IN STATUS REPORT:

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4. The State Authorities have furnished the Status Report dated 27.08.2024, which narrates the sequences of events.

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4(i). A perusal of Status Report reveals that the entire case originated from a complaint dated 19.02.2024, submitted to the Police Authorities by Smt. Manjeet Bansal, Deputy Secretary [SA] to the Government of Himachal Pradesh, with the averments that on 16.02.2024 at about 11:30 AM, one Shyam Lal Chauhan, Section Officer, GAD-C Section, Himachal Pradesh, Secretariat, Shimla visited the Chambers of the complainant along with one Prikshit Kumar, VPO Purag and Paras, son of Shri Chander Mohan, VPO Purag, District Shimla

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[HP], along with appointment/joining on 05.01.2024 and 14.02.2024, appointing them as Peons on “Outsource Basis” by forging her signature. The complainant narrates that one Akshay visited the SAS-1 Section of Himachal Pradesh Secretariat on 19.02.2024 along with a copy of appointment letter dated 12.02.2024, appointing him as Clerk, on Contract-Outsource Basis. Likewise, one Ajay, son of Shri Kashmir Singh also came to the Government Secretariat, along with similar letter, for enabling him to join as Clerk on contract basis. The complaint reveals that in fact no such appointment letter was issued by State/Secretariat Authorities and the aforesaid letter(s) were forged and fabricated and contained forged signatures of the complainant. Based on the complaint dated 19.02.2024, the instant FIR No. 11 of 2024 was registered by Police Station [East], Shimla on 19.02.2024.

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4(ii). Status Report further reveals that the Investigation in the matter started on 20.02.2024,

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when. The statement of two candidates [Paras and Parikshit], who were issued forged appointment letters were recorded. During investigation these persons disclosed that these appointment letters were issued/given by Parikshit Azad, who then was summoned by police. On making enquiries, it transpired that Parikshit Azad [main accused] has duped unemployed youth, by promising jobs to them by fabricating documents and by forging the signatures of complainant-competent authority. Based on this, the police arrested the main accused Parikshit Azad on 20.02.2024.

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4(iii). The Status Reports filed by the State Authorities admits that the petitioner is running a wholesale medicine business in the name of M/s R.A. Medical Agencies at Solan [HP], where the petitioner has undertaken transaction of more than Rs. 2,41,53,000/- [Rs. Two Crores Forty One Lakh, Fifty-Three Thousand] from 2020 to 2024. Status Report further indicates that the petitioner is alleged to have duped 12 unemployed youth

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by receiving an amount of Rs. 13,72,236/- [Rs Thirteen Lakhs Seventy Two Thousand Two Hundred and Thirty Six] by Cash and UPI through Prakash Veer Chauhan, Sohan Lal and Suresh Chander. The Status Reports narrates that out of total 12 persons, it has come on record that during Investigation, the police has recorded statement of three persons under Section 161 Cr.P.C, refusing to have given any amount to the petitioner. So far as other nine persons are concerned, the Status Report indicates that one person Hitender Sharma was working as an employee in M/s R.A Medical Agencies, which was owned and

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was being run by the petitioner with the further allegation that these persons had given amount through Prakash Veer Chauhan, Solan Lal and Suresh to the petitioner. At the same time, the Status Report indicates that the Investigation is complete and Challan has been presented before the Trial Court concerned on 18.05.2024 for further necessary action.

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In this background, the State Authorities have opposed the bail to the petitioner [Mohinder Bhardwaj].

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5. Heard Mr. Servadman Rathore, Advocate, for the bail petitioner and Mr. Hemant K. Verma, Learned Deputy Advocate General for the respondent -State.

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6. Before dealing with the bail petition, it is necessary to take note of the provisions of Sections 467, 419, 420, 465, 468, 469, 471, 120-B and 201 IPC, reads as under:-

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“Section 467 Indian Penal Code:

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Forgery of valuable security, will, etc.—

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Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

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Section 419 Indian Penal Code:

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Punishment for cheating by personation.—

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Whoever cheats by personation shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

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Section 420 Indian Penal Code:

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Cheating and dishonestly inducing delivery of property.—

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Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

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Section 465 Indian Penal Code:

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Punishment for forgery.—

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Whoever commits forgery shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

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Section 468 Indian Penal Code:

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Forgery for purpose of cheating.—

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Whoever commits forgery, intending that the [document or electronic record forged] shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.

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Section 469 Indian Penal Code:

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Forgery for purpose of harming reputation ;

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Whoever commits forgery, [intending that the document or electronic record forged]

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shall harm the reputation of any party, or knowing that it is likely to be used for that purpose, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine.

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Section 471 Indian Penal Code:

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Using as genuine a forged document or electronic record:

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Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record].

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Section 120-B Indian Penal Code:

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Punishment of criminal conspiracy:

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(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, [imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.

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(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]

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Section 201 Indian Penal Code:

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Causing disappearance of evidence of offence, or giving false information to screen offender :-

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Whoever, knowing or having reason to believe that an offence has been

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committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false;

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if a capital offence; shall, if the offence which he knows or believes to have been committed is punishable with death be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

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if punishable with imprisonment for life;— and if the offence is punishable with [imprisonment for life], or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

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if punishable with less than ten years’ imprisonment.— and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to onefourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.”

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7. Notably, the claim of a suspect-accused

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for pre-arrest or post-arrest bail-regular bail is to be examined/tested within the parameters

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prescribed in the Code of Criminal Procedure and also the broad para-meters mandated by the Hon’ble

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Supreme Court while dealing with the claim for bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus Sudarshan Singh (2002) 3 SCC 598; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528; Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496; reiterated in P. Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24, mandating that bail {anticipatory or regular} is to be granted, where case is frivolous or groundless and no prima facie or reasonable grounds exist which lead to believe or point out towards the accusation and even these parameters for bail have been reiterated in Sushila Aggarwal versus State-NCT Delhi , (2020) 5 SCC 01.

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8. While dealing with a case for grant of bail, three judges bench of the Hon’ble Supreme Court, after reiterating the broad parameters, has mandated in Deepak Yadav versus State of Uttar Pradesh, (2022) 8 SCC 559, in Para-25 that

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the “nature of crime ” has a huge relevancy, while considering the claim for bail. 8(i). In the case of Ansar Ahmad versus

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State of Uttar Pradesh, 2023 SCC Online SC 974 , the Hon’ble Supreme Court had expanded the horizon of the broad parameters, which are to be primarily taken into account, for considering claim for regular bail or anticipatory bail as

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under:

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“11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, in our considered opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the well-known parameters including :

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(i) The nature of the accusation weighing in the gravity and severity of the offence;

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(ii) The severity of punishment;

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(iii) The position or status of the accused, i.e. whether the accused can exercise influence on the victim and the witnesses or not;

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(iv) Likelihood of accused to approach or

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try to approach the victims/ witnesses;

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(v) Likelihood of accused absconding from proceedings;

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(vi) Possibility of accused tampering with evidence;

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(vii) Obstructing or attempting to obstruct the due course of justice;

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(viii) Possibility of repetition of offence if left out on bail;

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(ix) The prima facie satisfaction of the court in support of the charge including frivolity of the charge;

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(x) The different and distinct facts of each case and nature of substantive and corroborative evidence.

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We hasten to add that there can be several other relevant factors which, depending upon the peculiar facts and circumstances of a case, would be required to be kept in mind while granting or refusing bail to an accused. It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket formula for exercising the discretionary jurisdiction vested in a Court under Sections 438 and 439 respectively of the Cr. PC, as the case may be.”

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8(ii). In normal parlance, the general principle

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of law, is that while considering, the prayer for

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bail {pre-arrest bail or regular bail], a prima facie

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opinion is to gathered as to whether reasonable grounds exist pointing towards the accusation or whether the accusation is frivolous and groundless with the object of either injuring or humiliating

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or whether a person has falsely roped in the crime needs to be tested in background of the self-imposed restrains or the broad parameters mandated by law, as referred to herein above.

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8(iii). This Court is also conscious of the fact that as per the mandate of law, in Criminal Appeal No.3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, a Court is not required to weigh evidence collected by the Investigating Agency meticulously , nonetheless, the Court should keep in mind the nature of accusation, nature of evidence collected in support thereof, the severity of punishment prescribed for alleged offences, the character of accused, circumstances which are peculiar to the accused, the reasonable possibility of securing presence of accused during the trial, reasonable apprehension of evidence being tampered with or any possibility of causing an inducement, threat or promise to either the witnesses or complainant

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or victim by carving out a balance between liberty of an accused vis-à-vis the societal interests at large.

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In this background, while testing the claim for bail, the Court, is required to form a prima facie opinion in the context of the broad-parameters referred to above, without delving into the evidence on merits, as it may tend to prejudice the rights of the accused as well as the prosecution.

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ANALYSIS OF CLAIM IN INSTANT CASE:

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9. After taking into account the entirety of

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facts and circumstances, the statutory provisions, the mandate of law as referred to above; and material on record, including the Status Report, this Court is of the considered view, that the bail petitioner is entitled to be enlarged on bail, for the following reasons:

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9(i). The material on record including the Status Report dated 27.08.2024, does not reveal

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any reasonable grounds, at this stage, to believe

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the accusation against the bail petitioner when, the FIR registered, on the basis of the complaint dated 19.02.2024, of Smt. Manjeet Bansal, Deputy Secretary (SA) Government of Himachal Pradesh has not pointed out any accusation against the petitioner.

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9(ii). Even during investigation, the case of prosecution at this stage is, that the petitioner [Mohinder Bhardwaj] had allegedly deputed 12 youth of Rs. 13,72,236/- [Thirteen Lakh Seventy Two Thousand Two Hundred and Thirty-Six] in the name of Fees and Training Expenses and offering them jobs through Prakash Veer Chauhan, Sohan Lal and Suresh Chander whereas the Status Report, at the same time indicates that the petitioner is running a wholesale medicine business in the name of M/s R.A. Medical Agencies at Solan (HP) and during the last four years i.e. 2020 to 2024, a transaction of Rs 2,41,53,000/[Two Crore Forty-One Lakh Fifty-Three Thousand] approx., has been made from Bank Accounts of

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the petitioner. In these circumstances, it becomes highly improbable to believe the accusation against the petitioner, at this stage, that a person who runs a wholesale business of Medical Agency with business transaction of about Rs 2,41,53,000/[Rupees Two Crore Forty One Lakh Fifty Three Thousand] has been alleged to have duped 12 youths for a meagre sum of Rs 13,72,236/[Thirteen Lakh Seventy Two Thousand Two Hundred and Thirty-Six] only. 9(iii). Status Report narrates that 12 persons

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were alleged to have been duped for a sum of Rs 13,72,236/- but based on Investigation, the Status Report indicates three (3) persons in their statements recorded under Section 161 Cr.P.C. have

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specifically denied to have given any amount to the petitioner and so far as, the remaining nine (9) persons are concerned, the Status Report indicates that the alleged amount was remitted to the petitioner through Prakash Veer Chauhan,

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Sohan Lal and Suresh Chander but the factum-

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allegation as to whether aforesaid amount was

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in fact given or not given by these nine persons to the petitioner or was or was not given to Prakash Veer Chauhan, Sohan Lal and Suresh Chander; and whether such persons had or had not acted as agents of petitioner; and whether any amount was given, then, when and for what purpose is a fact to be tested, examined or proved during the trial.

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9(iv). Once the above allegations are yet to be tested and proved during the trial, therefore, prolongation of detention of the petitioner when, the Challan-Final Police Report has been presented before the jurisdictional Court on 18.05.2024 and the trial is expected to take considerable time hereinafter.

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9(v). Moreover, the accusation under Section 467 of IPC is concerned, there is no material on record, at this stage that the petitioner had forged any document. Likewise, the accusation under Sections 419 & 120-B is not prima facie

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borne out, at this stage, when, the Status Report also does not indicate that the petitioner had resorted to cheating anyone by personation. The accusation under Sections 465, 468, 469 471 IPC is not borne out, from the Status Report as neither any forgery relating to a document or electronic record was attributable to the bail petitioner, at this stage. Even the accusation under Section 120-B IPC is not patently borne out, at this stage, from the material available on record and even no reasonable grounds exist to believe the accusations against the petitioner and these allegations are yet to be examined, tested and proved during the trial therefore, in considered view of this Court, the petitioner is entitled to be enlarged on bail.

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10. MERE REGISTRATION OF EARLIER FIRsMATTER NOT GROUND TO DENY BAIL:

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Learned State Counsel has objected to the grant of bail, on the ground, that two other FIRs, i.e. FIR No. 85/15 dated 15.06.2015 with

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Police Station Sadar, Solan and another FIR. No. 317 of 2017 dated 07.02.2017 has been registered

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with Police Station Sadar Solan, District Solan (HP) and the petitioner, who has past criminal antecedents may not be enlarged on bail.

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The above contention of the Learned

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State Counsel is devoid of any merit in view of the mandate of law of the Hon’ble Supreme Court in Prem Prakash versus Union of India through Directorate of Enforcement, 2024 SCC OnLine SC 2270, reiterating that the bail cannot be denied due to pendency of another matter, in the following terms:

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“46. The Investigating Agency have also referred to ECIR No. 4 as a criminal antecedent. A reference was made to ECIR No. 4 of 2022 pertaining to illegal Stone Mining and related activities in Saheb Ganj, Jharkhand, where the petitioner was arrested on 25.08.2022 and the prosecution complaint was filed on 16.09.2022. Insofar as the bail pertaining to ECIR No. 4 of 2022, which is pending in this Court in SLP (Criminal) No. 691 of 2023, at the after notice stage, the merits of the bail in that case will be independently examined. Having examined the facts of the present case arising out of ECIR No. 5 of 2023 and in view of the findings recorded hereinabove,

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we do not think that the appellant can be denied bail based on pendency of the other matter. We say so in the facts and circumstances of the present case as we do not find any justification for his continued detention. The appellant has already been in custody for over one year. The Trial is yet to commence. There is a reference to one more ECIR which the Investigating Agency refers to in their counter, namely, ECIR/RNZO/18/2022 but nothing is available from the record as to whether any proceedings have been taken against the appellant.

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In the result, we pass the order:-

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(i) The appeal is allowed and impugned order dated 22.03.2024 is quashed and set-aside. (ii) The Trial Court is directed to relese the appellant on bail in connection with ED case No. ECIR No. 5 of 2023 on furnishing bail bonds for a sum of Rs.5 lakh with 2 sureties of the like amount.”

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10(i). Even on facts of the instant case, the Learned Counsel for the petitioner submits that so far as FIR No. 85 of 2015 is concerned, the bail petitioner stands enlarged on bail and so far as, the second F.I.R. No. 317 of 2017 is concerned, after investigation, the police has filed Cancellation Report before the Competent Court and the orders thereon are awaited.

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10(ii). In background of the above facts and

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the mandate of law, in the case of Prem Prakash (supra), this Court is of the considered view

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that mere registration of other FIRs or pendency of another matter, cannot by itself, be made the basis for continuing the detention endlessly or for prolonging the incarceration of the petitioner. Denial of bail merely, due to the registration of other FIRs-matters, shall certainly amount to not only curtailing and depriving the personal liberty of the petitioner enshrined in Article 21 of the Constitution of India but shall also amount

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to prolonging the custody, on basis of previously registered FIRs, which are still accusations and are yet to be examined, tested and proved during trial. Notably, the past antecedents, {based on F IR and matter} in facts of each case, may carry weight, where an accused, after release on bail, in an earlier F.I.Rs-matters has misused the concession of bail and the liberty or had violated the conditions of the bail order or has caused

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inducement or threat to any witness or any other persons connected with the case or an accused is evading trial or in an eventuality where, an accused after conviction does not surrender but commits another offence or in such like extenuating circumstances where, an accused tends to thwart the cause of justice or commits an acts resulting in miscarriage of justice, depending upon facts of each case.

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In above backdrop, in the instant case,

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once the State Authorities have not pointed out any adverse eventuality, in the Status Report, in relation to earlier FIRs-matters then, the plea for bail deserves to be accepted in peculiar facts herein. Ordered accordingly.

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NO OTHER ADVERSARIAL CIRCUMSTANCES IN STATUS REPORT:

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11. Claim for bail needs to be accepted,

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for the reason, that the State Authorities have not pointed out any other adversarial circumstances

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i.e. either by way of expressing any apprehension

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that the petitioner will flee away or may tamper

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with the evidence or cause any inducement or threat or promise to any person acquainted with the facts of the case. In the absence of any such adversarial circumstances having been pointed

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out by the State Authorities, the claim for bail carries weight and the same is accordingly accepted. Ordered accordingly.

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BAIL-PROLONGED INCARCERATION AND TRIAL TO TAKE TIME-ARTICLE 21 OF CONSTITUTION:

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12. Learned Counsel Mr. Servadman Rathore,

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Advocate, submits that the FIR in the instant case was registered on 19.02.2024 and petitioner

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has suffered custody for about six months now

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[since 21.02.2024] till day and even Investigation is complete and the Challan-Final Police Report stands filed by the police before the Learned Chief Judicial Magistrate, Shimla.

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12(i). Since the bail petitioner herein, has

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suffered incarceration for about six months now

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and even the conclusion of the trial is likely to take considerable time, therefore, this Court

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is of the considered view, that further detention of petitioner, shall certainly amount to implicating the petitioner on mere accusation or conjectures at this stage. The action of the State Authorities is dehors the object of bail, which is neither punitive nor preventative. Prolonging imprisonment before conviction has a substantial punitive content , which certainly amounts to depriving or curtailing the personal liberty of the petitioner enshrined in Article 21 of the Constitution of India.

¶187

12(ii). While reiterating the principle that the bail is a rule and jail is an exception and no accused can be deprived of his personal liberty on mere accusation and an accused is to be treated as innocent in eyes of law, the Hon’ble Supreme Court has outlined the object of bail in Guddan alias Roop Narayan Versus State of Rajasthan, 2023 SCC OnLine SC 1242 , in following terms:-

¶188

“11. In the case of Sanjay Chandra V. Central Bureau of Investigation, (2012) 1 SCC 40, while hearing a bail Application in a case of an alleged economic offence,

¶189

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¶190

this court held that the object of bail is neither punitive nor preventative . It was observed as under:

¶191

"21. In bail applications, generally, it has been laid down from the earliest times that 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 is 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.

¶192

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.

¶193

The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the 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 the 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, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends

¶194

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¶195

respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.

¶196

This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."

¶197

Further, in the case of Sandeep Jain v. National Capital Territory of Delhi, (2000) 2 SCC 66, this Court, while hearing a bail application held that conditions for grant of bail cannot become so onerous that their existence itself is tantamount to refusal of bail. This Court held as under:

¶198

"We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs.2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law.

¶199

Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the cheques issued by him,

¶200

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¶201

the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is chargesheeted by the police."

¶202

12(iii). While dealing with the concept of bail

¶203

and personal liberty of an accused under Article 21 of the Constitution of India, the Hon’ble Supreme Court, in Criminal Appeal No.2787 of 2024, titled as Javed Gulam Nabi Shaikh Versus State of Maharashtra and Another , held as under:-

¶204

“18 Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.

¶205

( 2024:HHC:8138 )- 32 -

¶206

19 If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime.

¶207

20 We may hasten to add that the petitioner is still an accused; not a convict. The over-arching postulate of criminal jurisprudence that an accused is presumed to be innocent until proven guilty cannot be brushed aside lightly, howsoever stringent the penal law may be.

¶208

21 We are convinced that the manner in which the prosecuting agency as well as the Court have proceeded, the right of the accused to have a speedy trial could be said to have been infringed thereby violating Article 21 of the Constitution.

¶209

22 In view of the aforesaid, this appeal succeeds and is hereby allowed. The impugned order passed by the High Court is set aside.”

¶210

12(iv). While dealing with a matter relating to prolonged incarceration and the right to speedy trial and right of liberty to be sacrosanct right and while deprecating that bail is not to be withheld as punishment so as to operate dehors the principle that bail is rule and jail is an exception, the Hon’ble Supreme Court, in Manish Sisodia vs Directorate Enforcement, SLP (Criminal)

¶211

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¶212

No 8781 of 2024, decided on 09.08.2024, has

¶213

held as under:-

¶214

“49. We find that, on account of a long period of incarceration running for around 17 months and the trial even not having been commenced, the appellant has been deprived of his right to speedy trial.

¶215

50. As observed by this Court, the right to speedy trial and the right to liberty are sacrosanct rights. On denial of these rights, the trial court as well as the High Court ought to have given due weightage to this factor.

¶216

The Court also reproduced the observations made in Gudikanti Narasimhulu (supra), which read thus:

¶217

“10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote: “What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox]:

¶218

“I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial””

¶219

The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail

¶220

( 2024:HHC:8138 )- 34 -

¶221

is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recognize the principle that “bail is rule and jail is exception”.

¶222

As observed by this Court in the case of Gudikanti Narasimhulu (supra), the objective to keep a person in judicial custody pending trial or disposal of an appeal is to secure the attendance of the prisoner at trial.

¶223

In the present case, the appellant is having deep roots in the society. There is no possibility of him fleeing away from the country and not being available for facing the trial. In any case, conditions can be imposed to address the concern of the State.

¶224

Insofar as the apprehension given by the learned ASG regarding the possibility of tampering the evidence is concerned, it is to be noted that the case largely depends on documentary evidence which is already seized by the prosecution. As such, there is no possibility of tampering with the evidence. Insofar as the concern with regard to influencing the witnesses is concerned, the said concern can be addressed by imposing stringent conditions upon the appellant.”

¶225

12(v). While adjudicating the claim for bail, even under Special Enactments, like PMLA [akin to NDPS Act], the Hon’ble Supreme Court in

¶226

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¶227

Criminal Appeal No_______of 2024 [Arising out of SLP (Criminal) No.10778 of 2024], titled as Kalvakuntla Kavitha Versus Directorate of Enforcement and connected matter has mandated that the fundamental right of liberty provided under Article 21 of the Constitution of India is superior to the statutory restrictions, in following

¶228

terms:-

¶229

“13. We had also reiterated the well-established principle that “bail is the rule and refusal is an exception”. We had further observed that the fundamental right of liberty provided under Article 21 of the Constitution is superior to the statutory restrictions.”

¶230

Keeping in view the factual matrix that

¶231

no reasonable grounds exist, against the petitioner,

¶232

as referred to above, coupled with the fact the bail petitioner has suffered incarceration for about six months now [since 21.02.2024] and the trial is likely to take considerable time and further detention shall certainly amount to depriving and curtailing the personal liberty of petitioner in view of mere accusation or conjectures or

¶233

( 2024:HHC:8138 )- 36 -

¶234

surmises, which are yet to be tested, examined and proved during trial. Detention of the petitioner can neither be punitive nor preventative, so as to make the petitioner to taste imprisonment as a lesson. Denial of bail shall certainly violate the principle that “bail is rule and jail is an exception”. Further, once the State Authorities, have failed to ensure speedy trial for last six months and considerable time is yet to be taken for completion of trial, then, in view of the mandate of law in the cases of Guddan alias Roop Narayan , Javed Gulam Nabi Shaikh, Manish Sisodia and Kalvakuntla Kavitha [supra] , the petitioner deserves to be released on bail.

¶235

PARITY: CO-ACCUSED RELEASED ON BAIL:

¶236

13. Learned counsel for the petitioner further submits that this Court has granted bail to other three co-accused, namely, Suresh Chander, Prakash Veer Chauhan, Sohan Lal and Damandeep Singh in Cr.MP(M) No.547 of 2024, Cr.MP (M) No. 547 of 2024 Cr.MP(M) No.863 of 2024,

¶237

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¶238

Cr.MP(M) No. 1763 of 2024 and, therefore, the petitioner [Mohinder Bhardwaj] may be extended

¶239

the same concession.

¶240

The State Authorities have not disputed the fact that other co-accused, namely Suresh Chander, Prakash Veer Chauhan, Sohan Lal and

¶241

Damandeep Singh have been enlarged on bail, who as per Status Reports were alleged to have acted as agents of the main accused [Parikshit Azad], whereas once the petitioner, has neither been named in the complaint nor any substantial material is borne out from the material on record

¶242

which are yet to be tested, examined and proved during the trial therefore, in these circumstances, the petitioner deserves to be enlarged on bail. Ordered accordingly.

¶243

NO APPREHENSION BY STATE AUTHORITIES THAT PETITIONER MAY FLEE AWAY OR THWART CAUSE OF JUSTICE :

¶244

14. The Status Report does not indicate that the release of the petitioner will thwart the cause of justice and no apprehension expressing

¶245

( 2024:HHC:8138 )- 38 -

¶246

any possibility of the petitioner either fleeing

¶247

away or cause any inducement, threat to any witness or persons acquainted with facts of case in any manner. However, this Court, still imposes the following stringent conditions against the bail petitioner.

¶248

CONCLUSION:

¶249

15. Taking into account the entirety of facts and circumstances and the material on record as borne out from the Status Report and the stand of the petitioner vis-à-vis the prosecution story and other factors i.e. that the petitioner is in custody for last six months [since 21.02.2024]; and prolongation of detention shall certainly violates personal liberty ; and further detention shall defeat the principle of “Bail is a Rule and Jail is an Exception” ; and once no reasonable grounds exists against the bail petitioner, even as per the Status Report, is running a medicine whole sale business, having substantial transaction of more than

¶250

( 2024:HHC:8138 )- 39 -

¶251

Rupees Two Crores during 2020-2024 vis-à-vis the accusation of having received a sum of Rs 13,72,236/- [Thirteen Lakh Seventy-Two Thousand Two Hundred and Thirty-Six] approx. and when, the veracity of such accusation is yet to be tested, examined and proved during the trial in accordance with law ; and the fact that the Investigation is complete ; and the Challan-Final Police Report has been filed before the competent Court; and nothing is to be recovered from the petitioner therefore, this Court is of the considered view, that any further detention or prolongation thereof shall certainly amount to pre-trial incarceration by way of punishment on the basis of mere accusation , which are yet to be proved, shall amount to incarcerating the petitioner on the basis of mere surmises-allegations. In these circumstances, the petitioner, at this stage, is entitled to be enlarged on bail.

¶252

16. For the reasons stated above and after taking into account, the entirety of facts and

¶253

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¶254

circumstances ; and the material on record as borne out from the Status Report; and the mandate of law, as referred to above, the instant petition is allowed, and the State Authorities are directed to release the petitioner [Mohinder Bhardwaj], on bail, subject to observance of the following conditions:-

¶255

(i) Respondent-State Authorities shall release the bail petitioner [Mohinder Bhardwaj], on furnishing his personal bond to the tune of Rs.1,00,000/- [Rupees One Lac] with one surety in the like amount to the satisfaction of Learned Trial Court concerned;

¶256

(ii) Petitioner shall abide by all other conditions, as may be imposed by the Learned Trial Court, if any, in view of this order;

¶257

(iii) Petitioner shall neither involve himself nor shall abet the commission of any offence hereinafter. Any involvement or abetting shall entail the withdrawal of concession in terms of this order;

¶258

(iv) Petitioner shall disclose his functional E-Mail IDs/WhatsApp number and that of his surety to the Learned Trial Court ;

¶259

(v) Petitioner shall not jump over the bail and also shall not leave the country without prior information of the Court ;

¶260

(vi) Petitioner shall join the trial without fail, except on grounds permissible in law ;

¶261

( 2024:HHC:8138 )- 41 -

¶262

(vii) Petitioner shall not tamper with the witnesses or the evidence in any manner ;

¶263

(viii) Petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case or the witnesses ;

¶264

(ix) It is clarified that violation of any of the conditions imposed hereinabove, shall entail cancellation of bail automatically; and

¶265

(x) State Authorities are free to move this Court for seeking alteration/modification of any condition(s), if necessary, in the facts and circumstances, at any time herein-after.

¶266

17. The observations made in this judgment

¶267

shall not be construed, in any manner, as an indictive of findings, for or against either of the parties herein, for the purpose of investigation or trial, which shall proceed independently, in accordance with law.

¶268

18. Petitioner is permitted to produce/use

¶269

copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy, but if required, may verify passing of order from Website of the High Court.

¶270

( 2024:HHC:8138 )- 42 -

¶271

The instant petition is allowed and

¶272

all pending application(s), if any, shall also stand

disposed of.

(Ranjan Sharma)

Judge

September 09, 2024 (tm)

¶277

MAHAJANTARUN Digitally signed by TARUN MAHAJANDN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=887aba774dfe8f4f3e95a41c7aa2abacb4ecee8f82efd8f56ec39f8e6b442b68, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=3ff6ebe501e8d7c8d73d0e5a5294bacca3f198d7d66b105bbf507179673109f5, CN=TARUN MAHAJANReason: I am the author of this documentLocation: 12345678Date: 2024.09.09 19:48:49+05'30'Foxit PDF Reader Version: 2023.2.0

Mohinder Bhardwaj v. State of Hp

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Mohinder Bhardwaj v. State of Hp

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