2021 (9) TMI 1449 - HC - Indian Laws

Seeking grant of anticipatory bail - Non-bailable offence - whether the Applicants are deprived of their liberty without following the due process of law? - HELD THAT - In absence of any provision or procedure for releasing an accused on bail in a non-bailable offence as adumbrated in Section 170 of the Code the powers available therein can be sought to be made applicable in every contingency as buttressed in the present facts and circumstances. Concededly the Applicants appeared before the Court and sought bail by preferring an application under Section 439 of the Code and this assumes insurmountable signifcance in the present circumstances for the obvious reason that the application for grant of regular bail before any Court would give rise to a presumption that the accused is in custody and that particular Court is duty bound to apply its mind to the material set forth before it moreso for the reason that fling of charge-sheet ipso facto indicates commission of offences as per the prosecution and the material collated is compiled in the charge-sheet. In any case if material brought on record indicates the gravity of the offence and culpability as well as complicity of the accused persons then in that case the Court is duty bound to exercise its power which have been invoked by preferring an application as per Sections 437 and 439 of the Code. The Court of the Magistrate or the Sessions Court cannot be held bereft of power and jurisdiction to grant bail or decline bail once an application is preferred before it and in such a contingency the said Court is duty bound to take into account the evident material emerging from the charge-sheet - While charting out the procedure to be adopted by the investigating agency it is held that unless arrest is necessary for the purpose of investigation or custodial interrogation it shall not be adopted as a routine course but with a clarification that arrest may be necessary if the offence is of grave nature and prescribes severe punishment. The directions for the Criminal Courts fnd its genesis in the well settled principle in case of JOGINDER KUMAR VERSUS STATE OF UP. 1994 (4) TMI 385 - SUPREME COURT that arrest cannot be made in a routine manner as it amounts to deprivation of a person s liberty. The illustration given is in regard to the offences under Section 498A where though the accused is not arrested during investigation he is directed to be arrested at the stage of fling of charge-sheet. In the instant case it is apparent that all the Applicants are alleged to have indulged in commission of offences which have resulted in serious dent to the financial health of the State as well as defrauding the public at large. Such offences are occurring in plenty and have resulted in stultifying overall growth of the nation and also have caused tremendous impairment to the economy of the nation. These crimes are more heinous in nature as they intend to destroy the economic fabric and financial ediflce of the State. Such crimes have the tendency to degrade and defy the faith of the public in law and order situation as it tantamount to a serious blow to its economic/financial condition. It is incumbent upon the Court who deals with the application for grant of bail to exercise its power and discretion on the basis of the material put forth by the prosecution and would also be subject to the necessity shown by the prosecution for seeking custody as per the culpability and complicity of the particular accused for proving the deep involvement of each accused and unfold and unearth the modus operandi in the embezzlement in order to drive a conclusion about the involvement of each of the accused person. On the application for bail being fled the CBI has opposed the release of the Applicants on the ground that the Applicants are influential and affluent persons and the probable witnesses are the employees and grave apprehension is expressed that if the Applicants are released on bail they may influence the witnesses and tamper the evidence. It was urged before the Court that keeping in mind the grave offence discretionary power to grant bail shall not be exercised. Dispensation of arrest at the stage of investigation need not continue throughout and in particular when the offence made out against the Applicants has now clearly emerged in the charge-sheet as a grave economic offence and the witnesses who will participate in the trial apparently surfacing the Applicants do not deserve their release on bail. Application dismissed.

Summary

Issues Involved:
1. Denial of bail applications by the Special Judge.
2. Application of the principle "Bail is the rule and jail is an exception."
3. Consideration of the Supreme Court's decisions in Aman Preet Singh v. CBI and Siddharth v. State of U.P.
4. The gravity of accusations and the potential for tampering with evidence.
5. The procedural requirements under Section 170 of the Criminal Procedure Code (CrPC).

Detailed Analysis:

1. Denial of Bail Applications by the Special Judge:
The applicants sought bail after being charge-sheeted, but their applications were rejected by the Special Judge. The applicants argued that since they were not arrested during the investigation, they should be granted bail upon appearing before the court. They relied on the principle that liberty is paramount and should not be curtailed without due process. The prosecution, however, opposed the bail, citing the gravity of the accusations and the potential for tampering with evidence.

2. Application of the Principle "Bail is the Rule and Jail is an Exception":
The applicants' counsel emphasized the principle that "bail is the rule and jail is an exception," arguing that the applicants should be granted bail as they were not arrested during the investigation. The counsel cited various judgments, including the Supreme Court's decision in Sushila Aggarwal & Ors. v. State (NCT of Delhi) & Anr., to support their argument that economic offences should not automatically result in denial of bail.

3. Consideration of the Supreme Court's Decisions in Aman Preet Singh v. CBI and Siddharth v. State of U.P.:
The applicants drew an analogy from the Supreme Court's decisions in Aman Preet Singh v. CBI and Siddharth v. State of U.P., where the court held that if an accused was not arrested during the investigation, they should not be arrested merely because a charge-sheet has been filed. The applicants argued that this principle should apply to their case as well, entitling them to bail without considering the gravity of the accusations.

4. The Gravity of Accusations and the Potential for Tampering with Evidence:
The prosecution argued that the applicants were involved in serious financial crimes that had a significant impact on the state's economy and public trust. They contended that the applicants' release on bail could lead to tampering with evidence and influencing witnesses, given their influential status. The court noted that the nature and seriousness of the offence, the character of the evidence, and the potential for the accused to abscond or tamper with evidence are critical factors in deciding bail applications.

5. The Procedural Requirements under Section 170 of the Criminal Procedure Code (CrPC):
The court clarified that Section 170 of the CrPC, which deals with forwarding the accused to a magistrate, does not mandate automatic bail for non-bailable offences. The court emphasized that the discretion to grant bail must consider the gravity of the offence and the material presented in the charge-sheet. The court observed that the applicants' reliance on Section 170 for automatic bail was misplaced, as the provision does not override the need to assess the seriousness of the accusations and the potential impact on the investigation and trial.

Conclusion:
The court concluded that the applicants were involved in grave economic offences that warranted their continued custody. The court highlighted the serious impact of such crimes on the state's financial health and public trust. Given the gravity of the accusations, the potential for tampering with evidence, and the influential status of the applicants, the court found no grounds to grant bail. The applications were thus rejected, emphasizing the need to balance individual liberty with the interests of justice and the integrity of the investigation and trial process.