TMI Blog2022 (9) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... levant considerations while considering the bail application but it would not be the only factor. The other relevant factor would be the sentence that could be imposed upon the said accused after trial and conviction. If seriousness of the charge was the only test then it would not be balancing the constitutional rights. Further, while considering the grant of bail, the triple/tripod test would also be a relevant consideration. The three factors as set out in the said test are:- (i) Whether the accused is a flight risk; (ii) Whether the accused will tamper with the evidence, if granted bail (iii) whether the accused could influence the witnesses, if granted bail. Since the grant or refusal of bail lies in the discretion of the Court the discretion is to be exercised with regard to the facts and circumstances of each case. However, bail is not to be denied to satisfy the collective sentiments of a community or as a punitive measure. Coming back to the facts of the present case, it may be pertinent to mention here that the petitioners were arrested on 13.03.2021 and the complaint came to be filed on 12.05.2021. Therefore, as on date they have undergone a total custod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of persons as mentioned below have colluded and connived with each other to make a network of fake firms and defraud the state exchequer. All these below mentioned individuals have made a total of 40 firms and have evaded tax amounting to Rs.122.28 Crores. The common Email-ids, Phone numbers and PAN cards have been used in all these firms to get the registrations and pass on the fraudulent Input tax Credit (ITC) to various beneficiary firms. No tax has been ever paid in the inward supply chain of these firms and a mechanism has been devised by all these individuals to cover the movement of clandestine goods with fake invoices so that fraudulent ITC could be availed for adjustment against the output tax liability. Further bank accounts given/uploaded at the GSTN Portal of these firms are different than the bank accounts through which money transaction has happened and even parallel and fake bank accounts have been opened to withdraw the cash in some of these firms It is also pertinent to mention that huge cash has been collected/ withdrawn from the bank accounts by same and common persons. Different roles were assigned in this group of individuals amongst each other such as getting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4 Sandeep Singh Nabha Coloney No.01 Khanna, Ludhiana 5 3 8 177,355,995/- 5 Amrinder Singh H.No.428 Uchha Vehra, GT Road Khanna 7 4 11 22,67,83,552/- 6 Sunny Mehta H.No.C/18 St. No.3 Jagat Colony Khanna, Ludhiana 4 5 9 26,99,55,692/- 7 Sukhdev Singh Shiva Tower Over Lock Road Near OBC Bank Ludhiana 1 0 1 3,71,52,715/- An amount of Rs.38.40 lacs cash withdrawn from bogus bank A/c of M/s Laxmi Iron Traders Total 25 15 40 122,28,94,629 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondent. Further, no offence was made out against the petitioner under Section 132 (a) (b) (c) of GST Act. In fact some unknown persons have misused the provisions of the GST Act and got registered the firm in the name of the petitioner in the year 2019 when the procedure to obtain the GST Registration Certificate under the GST Act was not authentic or foolproof. Now, by inserting Clause 6-A in Section 25 of the GST Act some of the deficiencies and shortcomings have been removed by the government. In fact, the petitioner was a roadside soup vendor in Khanna, Punjab. It was Sukhdev Singh and Harinder Singh who were the real culprits. Even otherwise the investigation stands completed and no recovery has been made from the petitioner. A similar prayer for bail has been made on account of the length of custody as also stage of trial. The Counsel for the petitioner-Sunny Mehta (CRM-M-32903-2021) contends that no show cause notice was issued by the respondent to him till date. The petitioner's documents had been misused. In fact he is the victim of fraud. The investigation stands completed and nothing was ever recovered from the petitioner. He contends that in another complaint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should 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. Apart from the question of prevention being the object of a 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 ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so. 16) This Court, time and again, has stated that bail is the rule and committal to jail an exception. It is also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution. In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, this Court opined: 2. The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative. 3. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wareness that the working of the bail system requires a second look from the point of view of correct legal criteria and sound principles, as has been pointed out by Dr Bottomley. 6. Let us have a glance at the pros and cons and the true principle around which other relevant factors must revolve. When the case is finally disposed of and a person is sentenced to incarceration, things stand on a different footing. We are concerned with the penultimate stage and the principal rule to guide release on bail should be to secure the presence of the applicant who seeks to be liberated, to take judgment and serve sentence in the event of the Court punishing him with imprisonment. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the applicant for fear of a severe sentence, if such be plausible in the case. As Erle. J. indicated, when the crime charged (of which a conviction has been sustained) is of the highest magnitude and the punishment of it assigned by law is of extreme severity, the Court may reasonably presume, some evidence warranting, that no amount of bail would secure the presence of the convict at the stage of judgment, sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court's verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding if that be so of innocence has been recorded by one Court. It may not be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihood of desperate reprisal, if enlarged, may be a deterrent and his own safety may be more in prison than in the vengeful village where feuds have provoked the violent offence. It depends. Antecedents of the man and socio-geographical circumstances have a bearing only from this angle. Police exaggerations of prospective misconduct of the accused, if enlarged, must be soberly sized up lest danger of excesses and injustice creep subtly into the discretionary curial technique. Bad record and police prediction of criminal prospects to invalidate the bail plea are admissible in principle but shall not stampede the Court into a complacent refusal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many valuable factors, cannot be exhaustively set out. 19) In Babu Singh v. State of U.P., (1978) 1 SCC 579, this Court opined: 8. The Code is cryptic on this topic and the Court prefers to be tacit, be the order custodial or not. And yet, the issue is one of liberty, justice, public safety and burden on the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. As Chamber Judge in this summit Court I had to deal with this uncanalised case-flow, ad hoc response to the docket being the flickering candle light. So it is desirable that the subject is disposed of on basic principle, not improvised brevity draped as discretion. Personal liberty, deprived when bail is refused, is too precious a value of our constitutional system recognised under Article 21 that the curial power to negate it is a great trust exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an Bail Project, monetary suretyship is losing ground. The considerable public expense in keeping in custody where no danger of disappearance or disturbance can arise, is not a negligible consideration. Equally important is the deplorable condition, verging on the inhuman, of our sub-jails, that the unrewarding cruelty and expensive custody of avoidable incarceration makes refusal of bail unreasonable and a policy favouring release justly sensible. 20. Viewed from this perspective, we gain a better insight into the rules of the game. When a person, charged with a grave offence, has been acquitted at a stage, has the intermediate acquittal pertinence to a bail plea when the appeal before this Court pends? Yes, it has. The panic which might prompt the accused to jump the gauntlet of justice is less, having enjoyed the confidence of the Court's verdict once. Concurrent holdings of guilt have the opposite effect. Again, the ground for denial of provisional release becomes weaker when the fact stares us in the face that a fair finding if that be so of innocence has been recorded by one Court. It may be conclusive, for the judgment of acquittal may be ex facie wrong, the likelihoo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... surety to those which have authority to bail him, which sureties are bound for him to the King's use in a certain sums of money, or body for body, that he shall appear before the justices of goal delivery at the next sessions, etc. Then upon the bonds of these sureties, as is aforesaid, he is bailed--that is to say, set at liberty until the day appointed for his appearance. Bail may thus be regarded as a mechanism whereby the State devolutes upon the community the function of securing the presence of the prisoners, and at the same time involves participation of the community in administration of justice. 7. Personal liberty is fundamental and can be circumscribed only by some process sanctioned by law. Liberty of a citizen is undoubtedly important but this is to balance with the security of the community. A balance is required to be maintained between the personal liberty of the accused and the investigational right of the police. It must result in minimum interference with the personal liberty of the accused and the right of the police to investigate the case. It has to dovetail two conflicting demands, namely, on the one hand the requirements of the society for being sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interests of the public or State and similar other considerations. It has also to be kept in mind that for the purposes of granting the bail the legislature has used the words reasonable grounds for believing instead of the evidence which means the court dealing with the grant of bail can only satisfy it (sic itself) as to whether there is a genuine case against the accused and that the prosecution will be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt. 24) In State of U.P. v. Amarmani Tripathi, (2005) 8 SCC 21, this Court held as under: 18. It is well settled that the matters to be considered in an application for bail are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The primary ground is that offence alleged against the accused persons is very serious involving deep rooted planning in which, huge financial loss is caused to the State exchequer ; the secondary ground is that the possibility of the accused persons tempering with the witnesses. In the present case, the charge is that of cheating and dishonestly inducing delivery of property, forgery for the purpose of cheating using as genuine a forged document. The punishment of the offence is punishment for a term which may extend to seven years. It is, no doubt, true that the nature of the charge may be relevant, but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant bail, both the seriousness of the charge and the severity of the punishment should be taken into consideration. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille. In Dipak Shubhashchandra Mehta versus CBI and another, 2012(1) RCR (Criminal) 870 it was held as under:- 18) The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail, a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie conclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The accused appellant is in custody for a period of over two years facing charges under Sections 420, 467, 468, 471 and 120B of the Indian Penal Code, 1860 (for short IPC ). Though charge-sheet has been submitted as far back as in May, 2015, the trial has not commenced. Even charges have not been framed against the accused appellant. It is stated at the bar that there are total of 13 cases against the accused appellant [8 cases for the offence(s) under the IPC and 5 cases for the offence(s) under the Prevention of Money Laundering Act, 2002 (for short PMLA )]. 4. From the materials on record, it appears that in the cases registered under the PMLA the accused appellant has been granted bail. Learned counsel for the accused appellant has submitted that in respect of the cases involving offences under the IPC [in which Central Bureau of Investigation (CBI) is investigating] the accused appellant has either been granted bail or has not been arrested and the present is the only case in connection with which he is in detention. 5. Be that as it may, having regard to the period of custody suffered and the fact that the trial has not commenced we are of the view that the accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the witness having written that he is not prepared to be confronted as he is from the same state, the appellant cannot be held responsible for the same when there is no material to indicate that the appellant or anyone on his behalf had restrained or threatened the concerned witness who refused to be confronted with the appellant in custody. 17. The only other aspect therefore for consideration is as to whether the further consideration made by the learned Judge of the High Court, despite holding the triple test in appellant s favour was justified and if consideration is permissible, whether the learned Judge was justified in his conclusion. 18. While opposing the contention put forth by the learned Senior Counsel for the appellant that the learned Judge of the High Court ought not to have travelled beyond the consideration on the triple test and holding it in favour of the appellant, the learned Solicitor General would contend that the gravity of the offence and the role played by the accused should also be a part of consideration in the matter of bail. It is contended by the learned Solicitor General that the economic offences is a class apart and the gravity is an ext ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section 437. It was observed by the court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. Hutchinson [AIR 1931 Allahabad 356, 358 : 32 Cri LJ 1271] it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence is an aspect which is required to be kept in view by the Court. The gravity for the said purpose will have to be gathered from the facts and circumstances arising in each case. Keeping in view the consequences that would befall on the society in cases of financial irregularities, it has been held that even economic offences would fall under the category of grave offence and in such circumstance while considering the application for bail in such matters, the Court will have to deal with the same, being sensitive to the nature of allegation made against the accused. One of the circumstances to consider the gravity of the offence is also the term of sentence that is prescribed for the offence the accused is alleged to have committed. Such consideration with regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfy its conscience that the investigation is proceeding in the right lines and for the purpose of consideration of grant of bail/anticipatory bail etc. At the same time, this Court, had disapproved the manner in which the learned Judge of the High Court in the said case had verbatim quoted a note produced by the respondent. If that be the position, in the instant case, the learned Judge while adverting to the materials, ought not have recorded a finding based on the materials produced before him. While the learned Judge was empowered to look at the materials produced in a sealed cover to satisfy his judicial conscience, the learned Judge ought not to have recorded finding based on the materials produced in a sealed cover. Further while deciding the same case of the appellant in Crl. Appeal No.1340 of 2019 , after holding so, this Court had consciously refrained from opening the sealed cover and perusing the documents lest some observations are made thereon after perusal of the same, which would prejudice the accused pre-trial. In that circumstance though it is held that it would be open for the Court to peruse the documents, it would be against the concept of fair trial if in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h custody is required for that purpose. As noted, the appellant has not been named as one of the accused in the ECIR but the allegation while being made against the co-accused it is indicated the appellant who was the Finance Minister at that point, has aided the illegal transactions since one of the co-accused is the son of the appellant. In this context even if the statements on record and materials gathered are taken note, the complicity of the appellant will have to be established in the trial and if convicted, the appellant will undergo sentence. For the present, as taken note the anticipatory bail had been declined earlier and the appellant was available for custodial interrogation for more than 45 days. In addition to the custodial interrogation if further investigation is to be made, the appellant would be bound to participate in such investigation as is required by the respondent. Further it is noticed that one of the co-accused has been granted bail by the High Court while the other co-accused is enjoying interim protection from arrest. The appellant is aged about 74 years and as noted by the High Court itself in its order, the appellant has already suffered two bouts of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791, after taking note of the earlier decisions governing the field. The gravity of the offence, the object of the Special Act, and the attending circumstances are a few of the factors to be taken note of, along with the period of sentence. After all, an economic offence cannot be classified as such, as it may involve various activities and may differ from one case to another. Therefore, it is not advisable on the part of the court to categorise all the offences into one group and deny bail on that basis. Suffice it to state that law, as laid down in the following judgements, will govern the field: Precedents P. Chidambaram v. Directorate of Enforcement, (2020) 13 SCC 791: 23. Thus, from cumulative perusal of the judgments cited on either side including the one rendered by the Constitution Bench of this Court, it could be deduced that the basic jurisprudence relating to bail remains the same inasmuch as the grant of bail is the rule and refusal is the exception so as to ensure that the accused has the opportunity of securing fair trial. However, while considering the same the gravity of the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but at the same time, the punishment to which the party may be liable, if convicted, also bears upon the issue. Therefore, in determining whether to grant 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. xxx xxx xxx 46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh Court must exercise this power with a sense of restraint, the decisions of this Court are founded on the basic principle that the due enforcement of criminal law should not be obstructed by the accused taking recourse to artifices and strategies. The public interest in ensuring the due investigation of crime is protected by ensuring that the inherent power of the High Court is exercised with caution. That indeed is one-and a significant-end of the spectrum. The other end of the spectrum is equally important : the recognition by Section 482 of the power inhering in the High Court to prevent the abuse of process or to secure the ends of justice is a valuable safeguard for protecting liberty. The Code of Criminal Procedure, 1898 was enacted by a legislature which was not subject to constitutional rights and limitations; yet it recognised the inherent power in Section 561-A. Post-Independence, the recognition by Parliament [Section 482 CrPC, 1973] of the inherent power of the High Court must be construed as an aid to preserve the constitutional value of liberty. The writ of liberty runs through the fabric of the Constitution. The need to ensure the fair investigation of crime is und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neral right to bail of accused persons and others. 4.-(l) A person to whom this section applies shall be granted bail except as provided in Schedule 1 to this Act. 70. Even other than the aforesaid provision, the enactment does take into consideration of the principles of law which we have discussed on the presumption of innocence and the grant of bail being a matter of right. 71. Uniformity and certainty in the decisions of the court are the foundations of judicial dispensation. Persons accused with same offense shall never be treated differently either by the same court or by the same or different courts. Such an action though by an exercise of discretion despite being a judicial one would be a grave affront to Articles 14 and 15 of the Constitution of India. 72. The Bail Act of United Kingdom takes into consideration various factors. It is an attempt to have a comprehensive law dealing with bails by following a simple procedure. The Act takes into consideration clogging of the prisons with the undertrial prisoners, cases involving the issuance of warrants, granting of bail both before and after conviction, exercise of the power by the investigating agency an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 of the Code. (f) There needs to be a strict compliance of the mandate laid down in the judgment of this court in Siddharth (supra). (g) The State and Central Governments will have to comply with the directions issued by this Court from time to time with respect to constitution of special courts. The High Court in consultation with the State Governments will have to undertake an exercise on the need for the special courts. The vacancies in the position of Presiding Officers of the special courts will have to be filled up expeditiously. (h) The High Courts are directed to undertake the exercise of finding out the undertrial prisoners who are not able to comply with the bail conditions. After doing so, appropriate action will have to be taken in light of Section 440 of the Code, facilitating the release. (i) While insisting upon sureties the mandate of Section 440 of the Code has to be kept in mind. (j) An exercise will have to be done in a similar manner to comply with the mandate of Section 436A of the Code both at the district judiciary level and the High Court as earlier directed by this Court in Bhim Singh (supra), followed by appropriate orders. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st witnesses were intimidated does not prima facie shows that there is any likelihood of threat to the prosecution witnesses. I find no merit in the contention of the learned counsel for the CBI that the mere presence of the petitioners at large would intimidate the witnesses. Further one co-accused who was actually found influencing the prosecution witness is not the petitioner before this Court. 16. As regards delay in trial, it may be noted that the charge sheet was filed on the 20th May, 2011 and thereafter twice supplementary charge sheets with list of witnesses and documents have been filed. After the charge sheet was filed, time was consumed in providing it in E-form with hyperlinking. After the scrutiny of the supplementary charge, the matter will now be listed for arguments on charge. Though the learned Trial Court has directed that the trial be conducted on day to day basis, however, in the main charge sheet itself 49 witnesses have been cited. Thereafter, further witnesses have been cited in the two supplementary charge sheets. Thus, the trial is likely to take time. 17. The petitioner Suresh Kalmadi has been in custody for over eight months and petitioner V.K ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, where the accused is charged of having committed a serious offence. The Court granting bail has to consider, among other circumstances, the factors such as a) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; b) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant and; c) prima facie satisfaction of the court in support of the charge. In addition to the same, the Court while considering a petition for grant of bail in a non-bailable offence apart from the seriousness of the offence, likelihood of the accused fleeing from justice and tampering with the prosecution witnesses, have to be noted. Considering the present scenario and there is no possibility of commencement of trial in the near future and also of the fact that the appellant is in custody from 31.03.2010, except the period of interim bail, i.e. from 15.09.2011 to 30.11.2011, we hold that it is not a fit case to fix any outer limit taking note of the materials collected by the prosecution. This Court has repeatedly held that when the undertrial prisoners are detained in jail custody to an indefinite period, Articl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Constitution, since the same is authorized by law. But even persons accused of nonbailable offences are entitled to bail if the Court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the Court is satisfied by reasons to be recorded that in spite of the existence of prima facie case, there is need to release such accused on bail, where fact situations require it to do so. 11. I am conscious of the fact that serious allegations of connivance and causing financial loss to the State exchequer have been levelled against the petitioners. There are also allegations of dishonesty, forgery, cheating and charges under various Sections of IPC and Prevention of Corruption Act have been levelled. However, if the petitioners are allowed to be kept in judicial custody for indefinite period then Article 21 of the Constitution is violated. It is the fundamental right of every person in judicial custody for speedy trial. In the facts of the present case, it is to be seen whether keeping the petitioners in custody is justified specially when some of the persons who have been nominated during investigation are yet to be arres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oo precious a value of our Constitutional System recognised under Article 21 that the crucial power to negate it is a great trust exercisable not casually but judicially, with lively concern for the cost to the individual and the community. Deprivation of personal freedom must be founded on the most serious considerations relevant to the welfare objectives of society specified in the Constitution. (b) As a presumably innocent person the accused person is entitled to freedom and every opportunity to look after his own case and to establish his innocence. A man on bail has a better chance to prepare and present his case than one remanded in custody. An accused person who enjoys freedom is in a much better position to look after his case and properly defend himself than if he were in custody. Hence grant of bail is the rule and refusal is the exception. (c) The object of bail is to secure the attendance of the accused at the trial. The principal rule to guide release on bail should be to secure the presence of the applicant to take judgment and serve sentence in the event of the Court punishing him with imprisonment. (d) Bail is not to be withheld as a punishment. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nesses being influenced and evidence being tampered with; the larger interest of the public or the State; the position and status of the accused with reference to the victim and the witness; the likelihood of the accused fleeing from justice; the likelihood of the accused repeating the offence; the history of the case as well as the stage of investigation etc. In view of so many variable factors the considerations which should weigh with the Court cannot be Exhaustively set out. However, the two paramount considerations are: (i) the likelihood of the accused fleeing from justice and (ii) the likelihood of the accused tampering with prosecution evidence. These two considerations in fact relate to ensuring a fair trial of the case in a Court of justice and hence it is essential that due and proper weight should be bestowed on these two factors. (j) While exercising the power under Section 437 of the Criminal Procedure Code in cases involving non-bailable offences except cases relating to offences punishable with death or imprisonment for life, judicial discretion would always be exercised by the Court in favour of granting bail subject to subsection 3 of Section 437 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the accused will be available for facing trial. It cannot be said that an accused will not be granted bail because he is a foreign national. 19. It has also been held in various judgment of Hon'ble the Apex Court as well as of this Court that criminal prosecution is not a proceeding for recovery of the dues of the investors but is meant for punishing the guilty. In case of economic offences, the object of criminal prosecution is to protect the investors and help them in recovery of the money. It can be a presumption but the detention of accused in the jail would not aid the recovery. It has also been held that the purpose is not to recover the amount but to punish the accused persons. 20. Hon'ble the Apex Court in Sanjay Chandra's case (supra) has held in para Nos.27 and 28 as under :- 27. In `Bihar Fodder Scam', this Court, taking into consideration the seriousness of the charges alleged and the maximum sentence of imprisonment that could be imposed including the fact that the appellants were in jail for a period of more than six months as on the date of passing of the order, was of the view that the further detention of the appellants as pre-t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ired to be made from him; co-accused Govind, who had approached this Court through CRM-M-31235-2021 Govind vs. State of Haryana has been granted regular bail by this Court and that the petitioner's trial in which 13 witnesses have been cited by the prosecution is yet to begin and therefore it is likely to take a long time to conclude. In view of the above, the present case is considered to be a fit one in which the petitioner be directed to be released on regular bail. Resultantly, subject to the satisfaction of the CJM/Duty Magistrate, Bhiwani, the petitioner is directed to be released on bail . In D.K. Shivakumar versus Directorate of Enforcement 2019 (4) JCC 4037:- 35. While dealing with the bail application, it is not in dispute that three factors have to be seen viz. i) flight risk, ii) tampering evidence iii) influencing witnesses. 36. Regarding the flight risk, neither argued by learned Additional Solicitor General nor placed any material on record, therefore, flight risk of the petition is ruled out. 37. Regarding tampering with the evidence, it is not in dispute that the documents relating to the present case is in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioners being enlarged on bail during trial and whether the accused are likely to flee from justice if released on bail. As stated earlier, prima facie a case for offence under Section 467 Indian Penal Code is made out, the punishment prescribed for which is up to life imprisonment. Thus, the accusations against the Petitioners are serious in nature. However, the evidence to prove accusations is primarily documentary in nature besides a few material witnesses. As held in Sanjay Chandra (supra) if seriousness of the offence on the basis of punishment provided is the only criteria, the Courts would not be balancing the Constitutional Rights but rather recalibrating the scales of justice. 10. Similarly, in the case of 'Mahesh Kumar Vs. Central Bureau of Investigation' 2014(8) R.C.R. (Criminal) 1650 , the Delhi High Court after considering the ratio of the Apex Court's decisions in cases of Sanjay Chandra and Dipak Shubhashchandra Mehta's 9 of 12 (Supra) granted bail to the accused persons, who were similarly accused of economic offences under various Sections of P.C.Act inspite of having found that there was good material against them by observing inter-al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.2.2020 for the same purpose. However, the Petitioner was in the meantime arrested by the CBI on 3.1.2020 in connection with the case started against him in the State of Himachal Pradesh, in which he was ultimately granted bail on 11.3.2020, on which date, he was arrested in the present case on the strength of a Production Warrant while still in custody. It is therefore, clear that in spite of having been granted bail on 24.5.2019 in FIR No.161 of 2018 of the same Police Station, the Petitioner had never misused his liberty and was diligent in attending the Court till 18.12.2019, after which he was arrested, and there is no material to indicate that he had tried to flee away. 12. Even the next submission raised on behalf of State to the fact that if released on bail he could tamper with the evidence also appears to be unfounded since the Petitioner is admittedly suspended from his post as Head Cashier in the concerned Bank, and is therefore, unable to have any access to the Bank record and documents, which would essentially constitute the evidence to conduct his prosecution, and this view was also taken by the Himachal Pradesh High Court in granting him bail in Para 9(d) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at even if the allegation is one of grave economic offence, it is not a rule that bail should be denied in every case since there is no such bar created in the relevant enactment passed by the Legislature nor does the bail jurisprudence provides so. Therefore, the underlining conclusion is that irrespective of the nature and gravity of charge, the precedent of another case alone will not be the basis for either grant or refusal of bail though it may have a bearing on principle. But ultimately the conclusion will have to be on case to case basis on the facts involved therein and securing the presence of the accused to stand trial. 9. I have considered the submissions made by learned counsel for the parties. 10. In Sanjay Chandra's case (supra), the Hon'ble Apex Court has held that it is not in the interest of justice that accused should be in jail for an indefinite period. No doubt, the offence alleged against the accused is a serious one in terms of alleged huge loss to the State exchequer, that, by itself, should not deter the Court from enlarging the accused on bail when there is no serious contention of the State that the accused, if released on bail, would int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI. 6. Therefore, effectively, what has been held in the aforementioned judgments is that it would be 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 yet been convicted or that in any circumstances he should be deprived of his liberty only upon the belief that he will tamper with the witnesses/evidence, if granted bail except in the most extraordinary circumstances. Undoubtedly, the seriousness of the charges against the accused are no doubt one of the relevant considerations while considering the bail application but it would not be the only fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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