Damandeep Singh Vs State of Hp

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,

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465, 467, 468, 469, 471, 120-B & 201 of the Indian Penal Code [hereinafter referred to as 'IPC] , registered

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at Police Station [East] Shimla, District Shimla, [H.P.].

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

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FACTUAL MATRIX:

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2. Case set up by Learned counsel for the

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petitioner, Dr. Rajesh Kumar Parmar, Advocate assisted by Ms. Kaushiki, Advocate, is that the petitioner-accused Damandeep Singh, has been falsely implicated in FIR dated 19.02.2024 just to protect the main accused, Prikshit Azad, who had political patronage at the relevant time.

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2(i). It is averred that Damandeep Singh met Prikshit Azad [main accused] in 2019 in Himachal Pradesh Secretariat, at Shimla. Prikshit Azad presented himself as a politician with strong political connections. In the year 2022, the vacancies of Drivers on outsource in Himachal Pradesh Secretariat were advertised for which, one Nagender Pal Singh contacted Prikshit Azad and sent him documents along with money. Thereafter, through Nagender Pal, the main accused Prikshit Azad allured other local individuals namely Dev Raj, Kapil, and Raj Kumar, who were local unemployed youth of the area.

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2(ii). It is further averred that above-named

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persons, approached the petitioner [Damandeep Singh) for a friendly loan, so as to enable them to seek a job as Driver and as Peon [on outsource basis] and the petitioner on request of these local people remitted same amount to Prikshit Azad.

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2(iii). It is averred that petitioner himself is a victim as the petitioner and his brother-in-law have been cheated by Prikshit Azad but despite repeated requests by the petitioner, the aforesaid Prikshit Azad did not refund the money causing financial loss to the tune of Rs.40,00,000/- [Rupees Forty Lakh]. Due to this, the petitioner was compelled to consume poison on 29.01.2024 [Annexure P-1]. Even while being in custody, the health of petitioner deteriorated for which he had to seek medical aid/treatment in Indira Gandhi Medical College & Hospital, Shimla from April-May 2024, onwards, which is borne out from the medical certificate [Annexure P-12].

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2(iv). The bail petitioner has filed several bail applications, whereby, the first bail application filed

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before Learned Additional Chief Judicial Magistrate, Shimla, which was dismissed on 27.02.2024 [Annexure P-6]; the second bail before Learned Additional Sessions Judge-1, Shimla was dismissed on 16.03.2024 [Annexure P-7]; the third bail i.e. Cr.MP(M) No.942 of 2024 was withdrawn on 16.05.2024 [Annexure [P-8], the fourth bail was dismissed on 11.06.2024 [Annexure P-9] due to ongoing investigation; the fifth bail filed before Learned Additional Sessions Judge (CBI Court), Shimla [Annexure P-10] was dismissed as the same did not reflect any changed circumstances; and the sixth bail i.e. Cr.MP(M) No.1608 of 2024 was withdrawn on 06.08.2024 [Annexure P-11], so as to enable the petitioner to file a fresh petition, with better particulars at appropriate stage.

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2(v). It is averred that petitioner himself is a victim of fraud and deceit orchestrated by Prikshit Azad, for which he filed a complaint with the Director General of Police, Himachal Pradesh, on 05.05.2024 [Annexure P-2], seeking an investigation relating to the

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fraud perpetrated by Prikshit Azad.

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2(vi). It is further averred that petitioner runs

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a Gas Agency at Jogindernagar and for purposes of running business, the petitioner obtained a loan from Punjab National Bank, Jogindernagar but due to the registration of FIR and consequential arrest on 21.02.2024, the Gas Agency business became nonfunctional rendering about 10 persons unemployed and even the loan amount has accumulated to Rs.56,00,000/- [Rupees Fifty Six Lakh], for which notice under Section 13 (2) of SARFAESI Act has been issued on 24.06.2024, Annexure P-5, asking the petitioner to repay the loan. It is averred that the detention has curtailed his personal liberty and is punitive, which has resulted in depriving the petitioner of requisite care of his ailing mother and wife.

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2(vii). In the instant bail petition, i.e. Cr.MP(M) No. 1763 of 2024, the petitioner has narrated the events and has also enclosed the medical certificates [Annexure P-12] revealing his ongoing treatment at IGMC & Hospital, Shimla, since April

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2024 along with a Certificate [Annexure P-13] indicating that his Gas Agency at Jogindenagar has become non-functional adversely affecting the public at large; and other documents i.e. SARFAESI Notice dated 24.06.2024 [Annexure P-5] revealing non-payment of loan taken for business due to FIR and consequential custody; with further averments that the petitioner being an Event Manager for Cultural Activities, for District Administration has suffered due to the continued detention since 20.02.2024, till day. It is averred that the investigation is complete and the bail petitioner has furnished the undertaking that, in case of his release on bail, he shall participate in the trial and shall not flee away and shall not cause any inducement, threat or promise to any person acquainted with the matter.

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In the above background, the petitioner has prayed for bail, in the instant proceedings.

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PROCEEDINGS BEFORE THIS COURT:

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3. Upon listing of instant bail application, this Court issued notice on 14.08.2024, directing State

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Authorities to file Status Report. The matter was listed on 22.08.2024, when, the Status Report dated 22.08.2024, was taken on record and copy thereof was supplied to learned counsel for the petitioner, who prayed for time to go through the Status Report and make submissions. The matter was taken up on 24.08.2024 and then on 30.08.2024 through video conferencing for some time and it was again listed on 02.09.2024, on which date, the matter was finally

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heard, with the consent of parties.

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STAND OF STATE AUTHORITIES IN STATUS REPORT:

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4. The State Authorities have furnished Status Report dated 22.08.2024, which narrates the

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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 averments that on 16.02.2024 at about 11:30 a.m., one Shyam Lal Chauhan, Section Officer, GAD-C Section, H.P.

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Secretariat, visited the Chambers of the complainant along with one Prikshit Kumar, VPO Purag and Paras, son of Shri Chander Mohan, VPO Purag, District Shimla [H.P.], who have come to the concerned Section Officer along with appointment/joining on 05.01.2024 and 14.02.2024, appointing them as Peons on outsource by forging her signature. The complainant narrates that one Akshay also visited the SAS-1 Section of the 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 the State/Secretariat Authorities and the aforesaid letter(s) were forged and fabricated and even contained forged signatures of the complainant. Based on complaint dated 19.02.2024, FIR was registered by Police Station [East], Shimla on 19.02.2024.

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4(ii). Status Report further reveals that the

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investigation in the matter started on 20.02.2024, whereby, the statement of two candidates [Paras and Prikshit], who were issued the forged appointment letters were recorded, who during investigation named one person, Prikshit Azad, who was summoned by the police. On making enquiries, it transpired that Prikshit Azad [main accused] has duped unemployed youth, by promising jobs to them by fabricating documents and by forging signatures of complainantcompetent authority. Based on this, the police arrested Prikshit Azad on 20.02.2024.

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4(iii). Status Report further narrates that main accused, Prikshit Azad and petitioner were alleged to have duped 18 youth for Rs.55,00,000/- [Rupees Fifty Five Lakh] Status report narrates that petitioner had sent an amount of Rs.11,52,000/- [Rupees Eleven Lakh Fifty Two Thousand] to Prikshit Azad between January, 2022 to January, 2024 from his bank accounts. Status Report narrates that bail petitioner [Damandep Singh] has resorted

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to transaction of more than Rupees Two Crore from his bank account i.e. Punjab National Bank [Account No.2430001032099104] and State Bank of India [Account No.39611163321].

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4(iv). Status Report further indicates that investigation is complete and Challan stands filed before Learned Chief Judicial Magistrate, Shimla, on 18.05.2024. It is further averred that report of SFSL is awaited which shall be presented by way of a Supplementary Challan before the concerned Court.

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In this background, the State Authorities

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have opposed the grant of bail, to the bail petitioner

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[Damandeep Singh].

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STAND OF BAIL PETITIONER IN REBUTTAL:

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5. Learned Counsel for the petitioner,

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reiterated his stand in the bail petition. It is averred that being the Event Manager for Cultural Affairs for Jogindernagar and nearby areas coupled with the fact that the bail petitioner owns and operates a Gas Agency at Jogindernagar, the bail petitioner had made financial transactions from his Punjab National Bank

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and State Bank of India bank accounts for business purposes. It is further submitted that petitioner himself is a victim, as he has been duped of about Forty Lakh Rupees by Prikshit Azad. However, it is submitted that the petitioner, on the request of above-named youth had extended friendly loan to these persons and on their asking had remitted the desired amount to Prikshit Azad. The petitioner himself being a victim of fraud at the behest of Prikshit Azad has prayed for bail, in these circumstances.

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6. Heard Dr. Rajesh Kumar Parmar, Learned Counsel assisted by Ms. Kaushiki, Advocate for the bail petitioner and Mr. Hemant K. Verma, Learned Deputy Advocate General for the respondent-State.

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7. 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, which read 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

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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] 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: 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

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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 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 one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both.”

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8. Notably, the claim of the suspect-accused

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for pre-arrest or post-arrest bail-regular bail is to

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be examined/tested within the parameters prescribed

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in the Code of Criminal Procedure and also the broad para-meters mandated by the Hon’ble Supreme Court while dealing with the claim for bail in

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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.

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Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24, mandating that the bail {anticipatory

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or regular} is to be granted where the 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

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State-NCT Delhi , (2020) 5 SCC 01.

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9. While dealing with the case for grant of bail, three judges bench of the Hon’ble Supreme Court, after reiterating the broad parameters, has mandated

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in Deepak Yadav versus State of Uttar Pradesh, (2022) 8 SCC 559, in Para-25 that the “nature of crime ” has a huge relevancy, while considering the claim for bail.

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9(i). In the case of Ansar Ahmad versus State

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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 the claim for regular bail or anticipatory bail as 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 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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9(ii). In normal parlance, the general principle of

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law is that while considering the prayer for bail

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{pre-arrest bail or regular bail], a prima facie opinion is to gathered as to whether reasonable grounds

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exist pointing towards the accusation or whether the accusation is frivolous and groundless with the object of either injuring or humiliating or whether a person

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

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9(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, severity of punishment prescribed for alleged offences, 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 or victim by carving out a balance

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between the liberty of an accused vis-à-vis the societal interests of the public-State at large.

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In this background, while testing the claim

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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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10. After taking into account the entirety of facts and circumstances, statutory provisions, mandate of law as referred to above; and the material on record, including 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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10(i). The material on record including the Status Report dated 22.08.2024, does not reveal any reasonable grounds to believe the accusation against the bail petitioner when, the Status Report itself indicates that the bail petitioner [Damandeep Singh]

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has two bank accounts, one in Punjab National Bank and another in State Bank of India at Jogindernagar and the petitioner has raised loans for business and had made transactions worth Two Crore so as to carry on the business of Gas Agency and other activities being the Event Manager, for Cultural Affairs, for District Administration.

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10(ii). The Status Report does not indicate or deny the fact that the bail petitioner [Damandeep Singh] is also a victim of fraud and cheating at the behest of Prikshit Azad, against whom, he had submitted a complaint to the Director General of Police, Shimla, on 05.05.2024 [Annexure P-2], for having been duped of more than Forty Lakh Rupees, which was extended as a friendly loan to the local youth of the area by remitting requested amount to Prikshit Azad, as referred to above.

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In the above background, the accusation against the petitioner becomes improbable, at this stage in view of stand of the petitioner vis-à-vis the prosecution, which is yet to be tested, examined and

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proved during the trial, which in instant case is yet to commence.

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10(iii). So far as 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 borne out at this stage, when, the Status Report also does not indicate that the bail 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. The accusation under Section 120-B IPC is not borne

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out the bail petitioner himself is a victim of cheating and fraud at the behest of main accused Prikshit Azad.

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In addition to this, once the above allegations, are yet to be examined, decided and proved during the trial and no reasonable grounds exist to believe the above accusations, therefore, the petitioner in considered view of this Court, is entitled

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to be enlarged on bail.

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11. Even the State Authorities in Status Report

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have not indicated anything incriminating against the bail petitioner and no recovery has been made from the bail petitioner except a letter allegedly issued by Prikshit Azad to the brother-in-law of the petitioner cannot be the basis for prolonging the detention, when, the petitioner and his brother-in-law himself is a victim of fraud and cheating. Therefore, the prayer for enlargement on bail has merit, and is accordingly granted.

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NO ADVERSARIAL CIRCUMSTANCES IN STATUS REPORTS:

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12. Claim for bail needs to be accepted, for

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the reason, that the State Authorities have not pointed out any adversarial circumstances expressing any apprehension that the bail petitioner will flee away or may tamper with the evidence or cause any inducement or threat or promise to any person or persons acquainted with the facts of the case. In the absence of any such adversarial circumstances having been pointed out by the State Authorities, the claim for

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bail carries weight. Ordered accordingly.

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MEDICAL CONDITIONS AND OTHER CIRCUMSTANCES:

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13. Taking into account the entirety of facts

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and circumstances, the prayer for enlargement of bail, carries weight, for the reason, that bail petitioner has placed on record Medical Certificates [Annexure P-12], which indicate that the petitioner is unwell and is under-treatment in Psychiatry-Unit 2, IGMC & Hospital, Shimla, since April, 2024, till day. In addition to this, it is relevant to note that the petitioner is 29 years of age and has an ailing mother and is recently married [about four months prior to registration of FIR]. Moreover, due to detention, a Gas Agency at Jogindernagar, which is owned and operated

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by petitioner has become non-functional and due to which, the services of about ten employees were dispensed with. Moreover, due to detention, the petitioner is unable to repay these loan for which a recovery notice, under Section 13(2) of SARFAESI Act has been issued. In addition to this, the petitioner

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is suffering incarceration for about six months now and prolongation of detention, in considered view of this Court, certainly amounts to imposing punishment, on basis of mere allegations, which are yet to be proved during the trial in accordance with law.

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

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14. Learned Counsel Dr. Rajesh Kumar Parmar,

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submits that FIR in the instant case was registered on 19.02.2024 and petitioner is custody for about six months [since 21.02.2024] till day and the Investigation is complete and Challan stands filed before the Learned Chief Judicial Magistrate, Shimla. 14(i). Since bail petitioner has suffered incarceration for about six months now and trial is likely to take considerable time, therefore, this Court is of the considered view, that further detention of the petitioner, shall certainly amount to implicating him on mere accusation or mere conjectures and suspicion, at this stage. Further, the State Authorities cannot curtail the personal liberty of the bail petitioner

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enshrined in Article 21 of the Constitution of India, when, the detention or denial of bail can neither be punitive nor preventative as in the instant case.

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

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

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"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.

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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.

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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 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.

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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."

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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:

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"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.

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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, 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 charge-sheeted by the police."

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

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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

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Javed Gulam Nabi Shaikh Versus State of

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Maharashtra and Another , held as under:-

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“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.

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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.

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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.

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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.

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

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14(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

¶194

of Enforcement, SLP (Criminal) No.8781 of 2024,

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decided on 09.08.2024, has held as under:-

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“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.

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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.

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

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“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:

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“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]:

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“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””

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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 is not to bewithheld 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”.

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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.

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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.

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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

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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.”

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14(v). While adjudicating the claim for bail, even

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under Special Enactments, like PMLA [akin to NDPS Act], the Hon’ble Apex Court in Criminal Appeal

¶211

_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 the following terms:-

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“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.”

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Keeping in view the factual matrix that

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no reasonable grounds exist against the petitioner, as referred to above, coupled with the fact the bail petitioner has suffered incarceration for about six

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months now [since 21.02.2024] and trial is likely to

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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 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 mandate of law in the cases of Guddan alias Roop

¶218

Narayan , Javed Gulam Nabi Shaikh, Manish

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Sisodia and Kalvakuntla Kavitha [supra] , the petitioner deserves to be released on bail.

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PARITY: CO-ACCUSED RELEASED ON BAIL:

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15. Learned counsel for the petitioner further

¶222

submits that this Court has granted bail to other

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three co-accused, namely, Suresh Chander, Prakash Veer Chauhan and Sohan Lal in Cr.MP(M) No.547 of 2024, Cr.MP(M) No.547 of 2024 and Cr.MP(M) No.863 of 2024 and, therefore, the bail petitioner [Damandeep Singh] may be extended the same concession.

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In Status Report, the State Authorities have not disputed the fact that other co-accused, namely Suresh Chander, Prakash Veer Chauhan and Sohan Lal have been enlarged on bail. Moreover, once these co-accused had acted an agents of main accused [Prikshit Azad], whereas, the bail petitioner himself claims to be a victim of fraud and cheating at the behest of Prikshit Azad i.e. [main accused], therefore, in these circumstances, the petitioner deserves to be

¶226

enlarged on bail. Ordered accordingly.

¶227

16. The Status Reports do not indicate that the

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release of the petitioner will thwart cause of justice or there is any apprehension of fleeing away or cause

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any inducement, threat to the witnesses as in any manner. However, this Court still imposes the following stringent conditions against the bail

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petitioner.

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17. Taking into account the entirety of the

¶233

facts and the mandate of law, as referred to above, the instant petition is allowed, and the State Authorities are directed to enlarge the petitioner [Damandeep Singh], on bail, at this stage, subject to observance of the following conditions:-

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(i) Respondent-State Authorities shall release the bail petitioner [Damandeep Singh] on furnishing personal bond and surety bond to the tune of Rs.1,00,000/- [Rupees One Lac] each to the satisfaction of Learned Trial Court concerned;

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

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(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;

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

¶238

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

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

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

¶241

(viii) Petitioner shall not directly or indirectly make any inducement, threat or promise to

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any person acquainted with the facts of the case or the witnesses;

¶244

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

¶245

(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.

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18. The observations made in this judgment

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

¶248

19. Petitioner is permitted to produce/use 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.

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Pending application(s), if any, shall also

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stand disposed of.

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(Ranjan Sharma) Judge

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September 04, 2024

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(Shivender)

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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: 2024.09.05 14:23:52+05'30'Foxit PDF Reader Version: 2023.2.0

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Damandeep Singh v. State of Hp

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Damandeep Singh v. State of Hp

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