9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2020 (11) TMI 996 - HC - Indian LawsSeeking enlargement on anticipatory bail - extraordinary power under Section 438 of Cr.P.C. - It is the case of the prosecution that the petitioner-accused No. 1 used the complainant to extract money from him and others by falsely implicating them in the conversation - HELD THAT - There cannot be presumption of guilt so as to deprive a person of his liberty without an opportunity before an independent forum or Court. The power under Section 438 of Cr.P.C. is an extraordinary power which was incorporated before other provisions for granting of bail under Section 437 and 439 of Cr.P.C. and judicial discretion is a matter regard and required to be exercised with due care and caution. Grant or refusal of bail is entirely discretionary and discretion should depend upon the facts and circumstances of each case. Certain parameters have to be kept in mind while considering or dealing with the application for anticipatory bail. In catena of decisions even in Constitutional Bench law relating to grant of anticipatory bail has been discussed and emphasized that the provisions of anticipatory bail enshrined in Section 438 of Cr.P.C. is conceptualized under Article 21 of the Constitution of India which relates to personal liberty and it shall be given a liberal interpretation. It is the duty of the Court to exercise its jurisdiction in proper way to protect the personal liberty of a citizen. If the Courts do not interfere we are troubling the path on destruction - It is well settled proposition of law that while considering the bail application the Court cannot hold a mini trial. If at all because of the intervention of the petitioner-accused No. 1 the tendering authority has disqualified the complainant from the tender process then under such circumstances some civil remedy is also available for the complainant to proceed in accordance with law if he is advised to do so. Complainant being a responsible person and Director of a big construction company cannot be expected to speak in a tutored manner. It is true that autobiography and antecedents of the accused must be seen while considering the bail application but at the same time autobiography and antecedents of the complainant must also be seen. Court has to put the facts of the case of the complainant and accused into a scale and weigh it to ascertain the truth. Complainant who is before the Court has also not come up with clean hands and it appears that all is not well. Thus in order to ascertain the truth a fair and unbiased investigation is necessary. Petitioner-accused No. 1 namely Rakesh Shetty shall execute a personal bond for Rs. 2, 00, 000/- with two sureties for the like sum to the satisfaction of the Investigating Officer - petition allowed.
Issues Involved:
1. Whether the petitioner-accused No. 1 should be granted anticipatory bail under Section 438 of Cr.P.C. 2. The nature and gravity of accusations against the petitioner-accused No. 1. 3. The applicability of legal precedents and principles concerning anticipatory bail. 4. The conduct of the petitioner-accused No. 1 during the investigation, including adherence to Covid-19 guidelines. 5. The impact of the petitioner-accused No. 1's actions on the complainant and the broader societal context. Issue-wise Detailed Analysis: 1. Grant of Anticipatory Bail: The petitioner-accused No. 1 sought anticipatory bail under Section 438 of Cr.P.C. for offences under Sections 506, 120B, 465, 384, and 419 of IPC. The court acknowledged that anticipatory bail is an extraordinary remedy intended to protect personal liberty and should be granted sparingly. The court emphasized the need to balance personal liberty with societal interest, referencing the Constitution Bench judgment in Gurbaksh Singh Sibbia v. State of Punjab, which highlighted that the provision of anticipatory bail is conceptualized under Article 21 of the Constitution of India. 2. Nature and Gravity of Accusations: The court considered the allegations that the petitioner-accused No. 1, as the Managing Director of Power TV News Channel, used his position to extract money from the complainant by impersonating an officer in the office of the Hon'ble Home Minister and influencing tender processes. It was alleged that the petitioner-accused No. 1 demanded a 5% commission on cleared bills and threatened to tarnish the complainant's reputation. The court noted that the offences under Sections 419, 465, and 506 of IPC are bailable, while Section 384 is non-bailable, punishable with three years' imprisonment. 3. Legal Precedents and Principles: The court referred to several legal precedents, including P. Chidambaram v. Directorate of Enforcement, which emphasized that anticipatory bail should be granted only in exceptional cases, especially in economic offences. The court also cited Dr. Subhash Kashinath Mahajan v. The State of Maharashtra, underscoring that there cannot be a presumption of guilt to deprive a person of liberty without an opportunity before an independent forum. The court highlighted the need for a liberal interpretation of Section 438 of Cr.P.C. in light of Article 21 of the Constitution, as discussed in Bhadresh Bipinbhai Sheth v. State of Gujarat. 4. Conduct During Investigation: The court examined the conduct of the petitioner-accused No. 1, noting allegations that he violated Covid-19 guidelines by absconding despite testing positive. The court stated that any violations of the Epidemic Diseases Act should be addressed separately and should not impact the anticipatory bail decision. The court also considered the argument that the petitioner-accused No. 1 was a habitual offender, but emphasized that until proven guilty, no presumption of guilt could be drawn. 5. Impact on Complainant and Societal Context: The court assessed the impact of the petitioner-accused No. 1's actions on the complainant, noting that the complainant alleged financial and reputational harm due to the petitioner's actions. However, the court stressed that the complainant's involvement and subsequent complaint should be evaluated during the trial. The court also considered the broader societal implications, emphasizing the need for a fair and unbiased investigation. Conclusion: The court granted anticipatory bail to the petitioner-accused No. 1, subject to several conditions, including executing a personal bond, surrendering before the Investigating Officer, cooperating with the investigation, and not tampering with evidence. The court underscored the importance of protecting personal liberty while ensuring the accused's availability for trial and preventing abuse of discretion. The decision balanced the need for a fair investigation with the protection of individual rights under Article 21 of the Constitution.
|
