TMI Blog2020 (11) TMI 996X X X X Extracts X X X X X X X X Extracts X X X X ..... ipatory 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 compl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that he could help him in getting any work done either from State or Central Governments. It is further alleged in the complaint that the complainant was in constant touch with the petitioner-accused No. 1 and during 4th week of June, 2020 he was persuaded to discuss with him about a tender floated by New Mangalore Port Trust in respect of construction of break water for fishing harbor at Kulai and the value of the work was around ₹ 100 Crores and tender got notified on 24.9.2019. After coming to know the said information, petitioner-accused No. 1 called one Mr. Parithosh Bala, Chief Engineer (Civil) New Mangalore Port Trust and spoke to him identifying himself as an Officer working in the office of Mr. Amith Shah, Hon'ble Home Minister and further told him that he has been directed by Hon'ble Home Minister to inform him that the tender submitted by M/s. Ramalingam Construction Company must be approved and granted in its favour. Subsequently, complainant after seeing, was astonished and taken aback after receiving the letter dated 29.6.2020 from New Mangalore Port Trust regarding disqualifying him from the tender process on the ground that he tried to influence the te ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aken by his Company. Subsequently, many episodes were also aired/telecasted by the petitioner-accused No. 1 through his Channel relating to the work done by the Company of the complainant linked with some politicians and his family members who had no connection with the work executed by the Company of the complainant. The petitioner-accused No. 1 also referred to several conversations held between them. The petitioner has used tutored conversations which were extracted from him falsely implicating others to suit his needs to achieve his oblique motive. It is further alleged that the petitioner-accused No. 1 used to extract money from others by falsely implicating them in the conversation. It is further alleged that he has edited the conversation in electronic form to suit his stories and thereby committed the offence. On the basis of the said allegations, a case has been registered. 6. It is the submission of Sri A.S. Ponnanna, learned Senior Counsel appearing for the petitioner-accused No. 1 that the offences under Sections 419, 465, 506 of IPC are punishable with two years' imprisonment and are bailable offences. Only Section 384 of IPC is punishable with three years' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l. 7. Per contra, the learned SPP-I by substantiating the objections in this behalf has submitted that the conduct of the petitioner-accused No. 1 is not as a responsible prudent citizen of this country. It is his further submission that during the course of investigation, it was noticed that the petitioner-accused No. 1 was tested positive for pandemic Covid-19. Without following the SOP issued by the Government, he was neither in home isolation nor admitted to any hospital. With an intention to escape, he absconded despite knowing the fact that he was tested Covid-19 positive and thereby violated the guidelines and has also committed an offence under Epidemic Diseases Act and the Guidelines issued thereunder regarding Covid-19. It is his further submission that because of the absence of the petitioner-accused No. 1 the investigation has been hampered. It is his further submission that during the course of investigation, accused No. 5 who was the car driver of the petitioner-accused No. 1 took other accused persons in a car and travelled to various places and facilitated accused Nos. 1 to 4 to remain absconded from the arrest. It is accused Nos. 3 and 4 who helped accused Nos. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt has to look into autobiography of the petitioner-accused No. 1, antecedents and backdrop of the commission of the offence and the social effect of the said offence. It is his further submission that accused No. 1-petitioner is professional habitual offender extracting money by threatening the people. In case of habitual offenders, this Court cannot exercise the power vested under Section 438 of Cr.P.C. It is his further submission that though the petitioner has been acquitted in some cases filed against him, he has been acquitted because the prosecution has failed to prove the case and not because there is no case as against him. It is his further submission that the act of the petitioner-accused No. 1 has created so many problems and the administration has fed up as he is the Managing Director of Power TV Channel and he has been creating problem. It is his further submission that because of the act of the petitioner-accused No. 1, the complainant has lost his tender and he should not be given an authority or a premium to commit such offences. If the petitioner-accused No. 1 is granted anticipatory bail as prayed for, it becomes a premium for him for further commission of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in view that a criminal offence is not just an offence against an individual, rather the larger societal interest is at stake. Therefore, a delicate balance is required to be established between the two rights--safeguarding the personal liberty of an individual and the societal interest. It cannot be said that refusal to grant anticipatory bail would amount to denial of the rights conferred upon the appellant under Article 21 of the Constitution of India. Economic offences 78. Power under Section 438 CrPC being an extraordinary remedy, has to be exercised sparingly; more so, in cases of economic offences. Economic offences stand as a different class as they affect the economic fabric of the society. In Directorate of Enforcement v. Ashok Kumar Jain [Directorate of Enforcement v. Ashok Kumar Jain, (1998) 2 SCC 105 : 1998 SCC (Cri) 510], it was held that in economic offences, the accused is not entitled to anticipatory bail. 84. In a case of money-laundering where it involves many stages of placement , layering i.e. funds moved to other institutions to conceal origin and interrogation i.e. funds used to acquire various assets , it requires systematic and analys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Aga v. State of Punjab, it was observed: 33. Presumption of innocence is a human right as envisaged under Article 14(2) of the International Covenant on Civil and Political Rights. It, however, cannot per se be equated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of India. It, having regard to the extent thereof, would not militate against other statutory provisions (which, of course, must be read in the light of the constitutional guarantees as adumbrated in Articles 20 and 21 of the Constitution of India). xxxx xxxx xxxx 35. A right to be presumed innocent, subject to the establishment of certain foundational facts and burden of proof, to a certain extent, can be placed on an accused. It must be construed having regard to the other international conventions and having regard to the fact that it has been held to be constitutional. Thus, a statute may be constitutional but a prosecution thereunder may not be held to be one. Indisputably, civil liberties and rights of citizens must be upheld. xxxx xxxx xxxx 43. The issue of reverse burden vis-a-vis the human rights regime must also be noticed. The approach of the comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a justificatory balancing exercise. If this were not so, the ubiquity and ugliness argument could be used in relation to murder, rape, car-jacking, housebreaking, drug-smuggling, corruption.... the list is unfortunately almost endless, and nothing would be left of the presumption of innocence, save, perhaps, for its relic status as a doughty defender of rights in the most trivial of cases. In view of the above, an accused is certainly entitled to show to the Court, if he apprehends arrest, that case of the complainant was motivated. If it can be so shown there is no reason that the Court is not able to protect liberty of such a person. There cannot be any mandate under the law for arrest of an innocent. The law has to be interpreted accordingly. 12. On going through the above said decision, it indicates 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. 13. In the case of Sanjay Chandra Vs. Central Bureau of Investigation reported in (2012) 1 SCC 40, it has been observed by the Hon'ble Apex Court that right to bail is not to be denied merely because of the sentiments of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tering of the present case. Until and unless the petitioner-accused No. 1 has been tried and convicted for the alleged offence, he cannot be held as a habitual offender and till he is proved guilty, no presumption can be drawn about his guilt as observed in the case of Dr. Subhash Kashinath Mahajan Vs. The State of Maharashtra another (cited supra). 17. While considering the bail application, the parameters which have to be considered has been stated in the case of Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others (cited supra) have to be kept in view. Keeping in view the said ratio laid down, on perusal of the factual matrix on hand, it indicates that while commission of the offences which have been alleged, the complainant has also joined his hands and subsequently he came up with a complaint, that is a matter which has to be considered and appreciated during the course of trial. The only consideration which has to be looked into for the purpose of granting or refusing bail is whether the accused would be readily available for trial and whether he is likely to abuse the discretion granted in his favour by tampering with evidence. If there is no prima facie cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code explains that an anticipatory bail is a pre-arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore, effective at the very moment of arrest. A direction under Section 438 is therefore intended to confer conditional immunity from the touch or confinement contemplated by Section 46 of the Code. The essence of this provision is brought out in the following manner: (Gurbaksh Singh case [(1980) 2 SCC 565 : 1980 SCC (Cri) 465], SCC p. 586, para 26) 26. We find a great deal of substance in Mr. Tarkunde's submission that since denial of bail amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngalore Port Trust and spoke to him with his mobile identifying himself as an Officer working in the office of the Hon'ble Minister of Home Affairs, Government of India, are all the matters which have to be considered and appreciated during the course of trial and it is in the form of document and evidence. If any further information is required, one of the conditions will be that the petitioner-accused No. 1 has to co-operate with the investigation and the Investigating Officer can investigate by questioning the petitioner-accused No. 1 in this behalf to extract whatever material which is required for the purpose of investigation. 20. 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. This proposition of law has been laid down by the Hon'ble Apex Court in its recent decision in the case of Arnab Manoranjan Goswami Vs. The State of Maharashtra Others, decided on 11.11.2020. 21. 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 intervent ..... X X X X Extracts X X X X X X X X Extracts X X X X
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