TMI Blog2012 (12) TMI 1229X X X X Extracts X X X X X X X X Extracts X X X X ..... t of Police-(City)/Supervisory Officer in connection with FIR No. 230 dated 28.08.2012 and FIR No. 224 dated 18.08.2012 for dereliction of duty, insubordination and not informing senior officers about crime. It is also alleged by the complainant that he was not at fault. In the FIR, it is further alleged that on 05.10.2012 in the evening, petitioner called the Complainant on his Mobile No. 9779580926 from his Mobile No. 9779580905 and asked him to come to his residence at H. No. 114, Sector 23, Chandigarh. As the complainant reached at the house of the petitioner, he discussed about the functioning of complainant's police station and demanded ₹ 5 lacs as bribe for not harassing him and for helping him in the inquiry by deposing in his favour. When the complainant expressed his inability to pay such a huge amount the petitioner allegedly reduced the bribe amount to ₹ 2 lacs. Thereafter, the complainant discussed the matter with a CBI official and told about the demand of bribe. The CBI official told the complainant that demand of bribe is to be verified by way of recording before initiating any action. The petitioner called the complainant to his office on 12.10.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ript has been shown to the Court. The voice has been recorded in three phases, firstly on the mobile phone of the complainant, secondly on recorders as pre-trap records and thirdly during the trap/raid conducted at the house of the petitioner, but this evidence cannot be appreciated at the stage of bail. Such evidence can be considered at the time of trial. Authenticity of the audio-recording is yet to be tested and is to be proved by cogent evidence by comparing the voice of the petitioner as well as the complainant The transcript at the face value cannot be taken into consideration. Learned counsel for the petitioner further contended that acoustic analyses is not an exact science, therefore, this evidence cannot be relied upon. Learned counsel for the petitioner further contended that alleged recovery has been effected from the drawer of the table in the camp office of the petitioner and not from his person. The complainant being a subordinate used to visit the camp office and may have placed the same in the drawer of the table. Such a recovery cannot be treated as bribe at the face value. This is required to be proved. Learned counsel for the petitioner has made reference to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3) R.C.R.(Cri) 707: (2005) 6 SCC 211, and judgments of this Court in Ramesh Sehgal v. State of Haryana, 1997 (2) R.C.R. (Cri) 78 and Dalip Singh v. State of Punjab, 2009 (1) RCR (Cri) 657. 5. Learned counsel for the CBI submitted that transcript should be read as a whole and it cannot be used in a pick and choose manner and contended that a conjoint reading of the voice records/transcripts clearly indicates that amount was sought from the complainant as a bribe to favour the complainant in the enquires in different cases pending against the complainant. Bribe money has been recovered during the trap and CBI has joined two Gazetted Officers of the Income Tax Department in the raid. Learned counsel further contended that shadow witnesses have not been associated since it was a case of Senior Police Officer and there was every possibility of leakage of the information and for that reason not one but two modern Soni Digital Recorders have been used in this case. Moreover, as per the provisions of the Indian Penal Code, Code of Criminal Procedure and the Evidence Act, there is no mandatory requirement of joining the shadow witnesses. It was further contended that if bail be granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons 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 refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 15. In the instant case, as we have already noticed that the pointing finger of accusation against the appellants is 'the seriousness of the charge'. The offences alleged are economic offen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n'ble Supreme Court, the principal rule to guide release on bail should be to secure the presence of the applicant who seeks bail, to take judgment and serve sentence in the event of the Court punishing him with imprisonment at the end of trial. In this perspective, relevance of considerations is regulated by their nexus with the likely absence of the petitioner for fear of a severe sentence, if such be plausible in the case. In the instant case, it is to be seen as to whether the course of justice would be thwarted by the petitioner who seeks the benignant jurisdiction of the Court to be freed for the time being. Thus, this Court deems it appropriate firstly to look into the contention of the CBI that petitioner is likely to interfere with the prosecution witnesses or otherwise effect the process of justice. In these circumstances, it would be appropriate to look into the rationale, behind the contention of the CBI, for that purpose, antecedents of the petitioner who is seeking bail are to be seen. 11. The petitioner has been involved in a case of alleged receipt of bribe. The petitioner is a senior police officer and has been apprehended in a trap at the instance of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he ground of general sentiments of the community as it impairs the right to liberty guaranteed to an accused. (c) While considering the grant of bail, both the factors, namely, the seriousness of charges and the severity of punishment which the offence carries must be taken Into consideration. (d) The bail ought to be granted in a case where there are no chances of the accused fleeing away from the processes of law or in other words, the accused, who is released on bail must be readily and wittingly available to submit himself to the custody of the Court at any given point of time. (e) The grant of bail ought not to be denied only on the perceived apprehension by the Court that the petitioner,-if restored to a liberty, will tamper with the evidence. There must be some prima facie evidence on record or reasonable and justifiable grounds to believe that in case the benefit of bail is extended to an accused he is going to misuse his liberty or likely to create conditions which are not conducive to hold a fair trial. 14. In the instant case, the offence for which the petitioner has been charged is punishable with imprisonment upto seven years under the Prevention of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15. 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 one hand, the requirements of the society for being shielded from the hazards of being exposed to the mis-adventures of a person alleged to have committed a crime; and on the other, the fundamental cannon of criminal jurisprudence, viz, the presumption of innocence of an accused till he is found guilty. Liberty exists in proportion to wholesome restrain, the more restraint on others to keep off from us, the more liberty we have 17. It is settled law that undertrials are detained in judicial custody but if the under-trials are allowed to be detained in judicial custody for an indefinite period, Article 21 of the Constitution of India is violated. Every person, detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been delayed which was fixed for 3rd December, 2012. 20. The contention of the CBI is that evidence in the shape of voice recording clearly indicates the demand and acceptance of the bribe. Conversation and the statement of the complainant read together make out a prima facie case against the petitioner. This contention of the CBI cannot be appreciated at this stage. It is cardinal rule, while deciding bail, Court is not required to consider technical questions. Here in this case, value of the conversation between complainant and the petitioner is in the shape of voice recordings. To appreciate its evidentiary value at this stage is unwarranted. It will prejudice the right of both, petitioner and the prosecution. It is the function of the Trial Court only. 21. In view of the above discussion, it is not necessary to refer to and discuss other issues canvassed by the learned counsel for the parties and the case laws relied upon in support of their respective contentions. I clarify here that I have not expressed any opinion on the merits of this case. Resultantly, I order that the petitioner be admitted to bail subject to his furnishing bail bonds with two solvent sureties, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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