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TMI Blog2016 (2) TMI 1321X X X X Extracts X X X X X X X X Extracts X X X X ..... he subject land admeasuring 430 acres. The prosecution further states out of the total cheated sum of Rs. 2.10 crores, a sum of Rs. 1.10 cores has been paid through banking challans to the M/s. JMD Techinfra Private Limited and the balance was paid in cash. 4. I have heard Mr. Sunil K. Mittal, learned counsel appearing on behalf of the applicant and Mr. M.S. Oberoi, learned APP appearing on behalf of the official respondent. I have also been assisted by Mr. Aman Lekhi, learned senior counsel appearing on behalf of the complainant in the subject FIR. 5. In a nutshell, it is contended on behalf of the prosecution as well as the complainant that the conduct of the applicant herein disentitles him from being enlarged on regular bail. The aforesaid conduct is summarized as follows:- a) The applicant had at the time of securing bail before the learned Additional Sessions Judge undertaken to refund the sum of Rs. 1.10 crores as recorded in the order dated 9th July, 2014 and subsequently, resiled from making the said payment for one reason or the other. b) Subsequent to the dismissal of the bail application by the Sessions Court and the miscellaneous applications seeking extension of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. 23. 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. 24. In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge". The offences alleged are economic offences which have resulted in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. 40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required. xxxx xxxx 43. There are seventeen accused persons. Statements of witnesses run to several hundred pages and the documents on which reliance is placed by the prosecution, are voluminous. The trial may take considerable time and it looks to us that the appellants, who are in jail, have to remain in jail longer than the period of detention, had they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... consideration is as to whether the petitioners who are charged for an offence of conspiracy under Section 120B IPC read with Section 409 IPC apart from other offences etc., which carry life imprisonment ought to be released on bail notwithstanding the fact that the order of the Apex Court is silent about the life imprisonment which the offence carries. In this regard, I feel merit in the contention of Mr. Ahmed, the learned senior counsel for the petitioners that although the Apex Court order does not find the mention of the word 409 IPC or the factum of life imprisonment which could be imposed for the said offence in the order, but it was cognizant of the fact that the all co-accused persons in the bail applications which were under its consideration were charged so. In addition to this, while dealing with the facts of the case in the batch of applications of Sanjay Chandra's case (supra) it had taken the charges against all the co-accused as a whole and not individual charges, therefore, if that be the position, this Court ought not to deny the bail to the petitioners on account of the omission, though inadvertent, in the order of the Apex Court. I am of the view that when th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ast word and that last word, once spoken, is loyally accepted.' The better wisdom of the court below must yield to the higher wisdom of the court above. This is the strength of the hierarchical judicial system." 23. Similarly, in case titled M/s. Bayer India Ltd. & Ors. Vs. State of Maharashtra & Ors., (1993) 3 SCC 29'' the Apex Court has observed as under:- "While we certainly respect the independence of the High Court and recognize that it is a co-equal institution, we cannot but say, at the same time, that the constitutional scheme and judicial discipline requires that the High Court should give due regard to the orders of this Court which are binding on all courts within the territory of India." 24. Mr. Altaf Ahmed, the learned senior counsel has also cited number of other judgments to impress on this Court, the question that the omission to mention of Section 409 IPC or the absence of the word 'life imprisonment' in the Supreme Court order cannot be interpreted in a manner which may be detrimental to the interest of the petitioners on account of Article 141 of the Constitution of India as the Supreme Court has dealt with the facts of the case as a who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the accused at trial. c) The accused is presumed to be innocent until he is found guilty and convicted. d) The Court must consider the unnecessary burden on the State to keep in custody a person who is yet to be proved guilty. e) Personal liberty is constitutionally protected unless necessity requires detention. f) The enlargement on bail is the rule and committal to jail, an exception. 11. At this stage, Mr. Aman Lekhi, learned counsel appearing on behalf of the complainant would urge that the expression "bail is the rule and committal to jail, an exception" is too expansive. 12. It is pertinent to mention here that each case, however, has to be decided in the context of its own facts and circumstances. A balanced approach must be taken and it is preferable to grant bail on stringent conditions rather than to keep an individual in detention for an indefinite period. The State is always at liberty to seek cancellation/modification of bail if the applicant violates the conditions imposed on him. 13. In Rajat Sharma vs. State of NCT of Delhi reported as 2015 3 JCC 1493, this Court whilst following the dictum in Sanjay Chandra (supra) was pleased to observe in paragraphs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ain present before the court on the date fixed for hearing of the case. The applicant shall surrender his passport, if not already surrendered, before the trial court at the time of furnishing bail/surety bond. The application is disposed of accordingly." 14. In H.B. Chaturvedi vs. C.B.I. reported as 2010 3 JCC 2109 in paragraph 12 thereof, this Court observed as follows:- "12. Bail, it has been held in a catena of decisions, is not to be withheld as a punishment. Even assuming that the accused is prima facie guilty of a grave offence, bail cannot be refused in an indirect process of punishing the accused person before he is convicted. Furthermore, there is no justification for classifying offences into different categories such as economic offences and for refusing bail on the ground that the offence involved belongs to a particular category. It cannot, therefore, be said that bail should invariably be refused in cases involving serious economic offences." 15. Mr. Lekhi has also invited my attention to the decisions of the Supreme Court in N. Kannapan vs. State (Union Territory) Andaman and Nicobar Islands reported as (2013) 2 SCC 177 and State of U.P. Through CBI v. Amarmani ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed investigation; the charge sheet has been filed; order on charge has been rendered on 12th February, 2016; and the applicant has been in judicial custody since 19.04.2015 cannot be lost sight of. Therefore, in my view, the presence of the applicant in further custody is not necessary. 22. In view of the foregoing, it is directed that the applicant be released on regular bail pending trial on his furnishing a personal bond in the sum of Rs. 1,00,000/- with two sureties of the like amount to the satisfaction of the Trial Court subject to the further conditions that:- (i) The applicant shall not leave the National Capital Territory of Delhi without the prior permission of the Trial Court; (ii) The applicant shall remain present before the Trial Court on the dates fixed for the hearing of the case; (iii) The applicant shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the present case so as to dissuade them from disclosing such facts to the Court or to any other authority. (iv) The applicant shall also surrender his Passport, if any, before the Trial Court at the time of furnishing bail bond/surety bond. 23. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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