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TMI Blog2024 (9) TMI 1732X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner with the alleged accusation and even there is no evidence to connect the petitioner with the alleged offence. 2(i). It is averred that the petitioner is alleged to have duped about 12 people by taking amount of Rs. 13,72,236/- [Rs Thirteen Lakha Seventy Two Thousand Two Hundred and Thirty Six] as fee and training expenses and allured them by offering jobs on out-source basis through Prakash Veer Chauhan, Sohan Lal and Suresh Kumar. It is averred that the allegations are totally wrong and denied whereas the true facts are that the petitioner has a wholesale medicine business in the name of M/s. R.A. Medical Agencies at Solan and the petitioner being in whole sale business, has carried out financial transaction of Rs. 2,41,53,000/- [Rs Two Crores Forty-One Lakh, Fifty-Three Thousand] from his Bank accounts, towards the aforesaid business and therefore, the accusation against the petitioner is only to implicate him falsely. 2(ii). The bail petitioner has filed several bail applications, whereby, the First Bail Application filed before the Learned Additional Chief Judicial Magistrate, Shimla, was dismissed on 27.02.2024 [Annexure P-1]; the Second Bail Application filed before ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o through the Status Report and to make submissions. The matter was listed on 03.09.2024 and with consent of parties, the same was finally heard. STAND OF STATE AUTHORITIES IN STATUS REPORT: 4. The State Authorities have furnished the Status Report dated 27.08.2024, which narrates the sequences of events. 4(i). A perusal of Status Report reveals that the entire case originated from a complaint dated 19.02.2024, submitted to the Police Authorities by Smt. Manjeet Bansal, Deputy Secretary [SA] to the Government of Himachal Pradesh, with the averments that on 16.02.2024 at about 11:30 AM, one Shyam Lal Chauhan, Section Officer, GAD-C Section, Himachal Pradesh, Secretariat, Shimla visited the Chambers of the complainant along with one Prikshit Kumar, VPO Purag and Paras, son of Shri Chander Mohan, VPO Purag, District Shimla [HP], along with appointment/joining on 05.01.2024 and 14.02.2024, appointing them as Peons on "Outsource Basis" by forging her signature. The complainant narrates that one Akshay visited the SAS-1 Section of Himachal Pradesh Secretariat on 19.02.2024 along with a copy of appointment letter dated 12.02.2024, appointing him as Clerk, on Contract-Outsource Basis. L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... atus Report indicates that the Investigation is complete and Challan has been presented before the Trial Court concerned on 18.05.2024 for further necessary action. In this background, the State Authorities have opposed the bail to the petitioner [Mohinder Bhardwaj]. 5. Heard Mr. Servadman Rathore, Advocate, for the bail petitioner and Mr. Hemant K. Verma, Learned Deputy Advocate General for the respondent -State. 6. Before dealing with the bail petition, it is necessary to take note of the provisions of Sections 467, 419, 420, 465, 468, 469, 471, 120-B and 201 IPC, reads as under:- "Section 467 Indian Penal Code: Forgery of valuable security, will, etc.- Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence. (2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.] Section 201 Indian Penal Code: Causing disappearance of evidence of offence, or giving false information to screen offender :- Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false; if a capital offence; shall, if the offence which he knows or believes to have been committed is punishable with death be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring claim for regular bail or anticipatory bail as under: "11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, in our considered opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the well-known parameters including: (i) The nature of the accusation weighing in the gravity and severity of the offence; (ii) The severity of punishment; (iii) The position or status of the accused, i.e. whether the accused can exercise influence on the victim and the witnesses or not; (iv) Likelihood of accused to approach or try to approach the victims/ witnesses; (v) Likelihood of accused absconding from proceedings; (vi) Possibility of accused tampering with evidence; (vii) Obstructing or attempting to obstruct the due course of justice; (viii) Possibility of repetition of offe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it may tend to prejudice the rights of the accused as well as the prosecution. ANALYSIS OF CLAIM IN INSTANT CASE: 9. After taking into account the entirety of facts and circumstances, the statutory provisions, the mandate of law as referred to above; and material on record, including the Status Report, this Court is of the considered view, that the bail petitioner is entitled to be enlarged on bail, for the following reasons: 9(i). The material on record including the Status Report dated 27.08.2024, does not reveal any reasonable grounds, at this stage, to believe the accusation against the bail petitioner when, the FIR registered, on the basis of the complaint dated 19.02.2024, of Smt. Manjeet Bansal, Deputy Secretary (SA) Government of Himachal Pradesh has not pointed out any accusation against the petitioner. 9(ii). Even during investigation, the case of prosecution at this stage is, that the petitioner [Mohinder Bhardwaj] had allegedly deputed 12 youth of Rs. 13,72,236/- [Thirteen Lakh Seventy Two Thousand Two Hundred and Thirty-Six] in the name of Fees and Training Expenses and offering them jobs through Prakash Veer Chauhan, Sohan Lal and Suresh Chander whereas the Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der Sections 465, 468, 469 & 471 IPC is not borne out, from the Status Report as neither any forgery relating to a document or electronic record was attributable to the bail petitioner, at this stage. Even the accusation under Section 120-B IPC is not patently borne out, at this stage, from the material available on record and even no reasonable grounds exist to believe the accusations against the petitioner and these allegations are yet to be examined, tested and proved during the trial therefore, in considered view of this Court, the petitioner is entitled to be enlarged on bail. 10. MERE REGISTRATION OF EARLIER FIRs- MATTER NOT GROUND TO DENY BAIL: Learned State Counsel has objected to the grant of bail, on the ground, that two other FIRs, i.e. FIR No. 85/15 dated 15.06.2015 with Police Station Sadar, Solan and another FIR. No. 317 of 2017 dated 07.02.2017 has been registered with Police Station Sadar Solan, District Solan (HP) and the petitioner, who has past criminal antecedents may not be enlarged on bail. The above contention of the Learned State Counsel is devoid of any merit in view of the mandate of law of the Hon'ble Supreme Court in Prem Prakash versus Union of I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eration of the petitioner. Denial of bail merely, due to the registration of other FIRs-matters, shall certainly amount to not only curtailing and depriving the personal liberty of the petitioner enshrined in Article 21 of the Constitution of India but shall also amount to prolonging the custody, on basis of previously registered FIRs, which are still accusations and are yet to be examined, tested and proved during trial. Notably, the past antecedents, {based on F IR and matter} in facts of each case, may carry weight, where an accused, after release on bail, in an earlier F.I.Rs-matters has misused the concession of bail and the liberty or had violated the conditions of the bail order or has caused inducement or threat to any witness or any other persons connected with the case or an accused is evading trial or in an eventuality where, an accused after conviction does not surrender but commits another offence or in such like extenuating circumstances where, an accused tends to thwart the cause of justice or commits an acts resulting in miscarriage of justice, depending upon facts of each case. In above backdrop, in the instant case, once the State Authorities have not pointed out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... :INSC:819 : (2012) 1 SCC 40, while hearing a bail Application in a case of an alleged economic offence, this court held that the object of bail is neither punitive nor preventative. It was observed as under: "21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge- sheeted by the police." 12(iii). While dealing with the concept of bail and personal liberty of an accused under Article 21 of the Constitution of India, the Hon'ble Supreme Court, in Criminal Appeal No.2787 of 2024, titled as Javed Gulam Nabi Shaikh Versus State of Maharashtra and Another, held as under:- "18 Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents, juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, may be, the result of value erosion or parental neglect; may be, because of the stress of circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 : (1978) 1 SCC 240. We quote: "What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox]: "I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial"" 53. The Court further observed that, over a period of time, the trial courts and the High Courts have forgotten a very well-settled principle of law that bail is not to be withheld as a punishment. From our experience, we can say that it appears that the trial courts and the High Courts attempt to play safe in matters of grant of bail. The principle that bail is a rule and refusal is an exception is, at times, followed in breach. On account of non-grant of bail even in straight forward open and shut cases, this Court is flooded with huge number of bail petitions thereby adding to the huge pendency. It is high time that the trial courts and the High Courts should recogn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of bail shall certainly violate the principle that "bail is rule and jail is an exception". Further, once the State Authorities, have failed to ensure speedy trial for last six months and considerable time is yet to be taken for completion of trial, then, in view of the mandate of law in the cases of Guddan alias Roop Narayan, Javed Gulam Nabi Shaikh, Manish Sisodia and Kalvakuntla Kavitha [supra], the petitioner deserves to be released on bail. PARITY: CO-ACCUSED RELEASED ON BAIL: 13. Learned counsel for the petitioner further submits that this Court has granted bail to other three co-accused, namely, Suresh Chander, Prakash Veer Chauhan, Sohan Lal and Damandeep Singh in Cr.MP(M) No.547 of 2024, Cr.MP (M) No. 547 of 2024 Cr.MP(M) No.863 of 2024, Cr.MP(M) No. 1763 of 2024 and, therefore, the petitioner [Mohinder Bhardwaj] may be extended the same concession. The State Authorities have not disputed the fact that other co-accused, namely Suresh Chander, Prakash Veer Chauhan, Sohan Lal and Damandeep Singh have been enlarged on bail, who as per Status Reports were alleged to have acted as agents of the main accused [Parikshit Azad], whereas once the petitioner, has neither been name ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances; and the material on record as borne out from the Status Report; and the mandate of law, as referred to above, the instant petition is allowed, and the State Authorities are directed to release the petitioner [Mohinder Bhardwaj], on bail, subject to observance of the following conditions:- (i) Respondent-State Authorities shall release the bail petitioner [Mohinder Bhardwaj], on furnishing his personal bond to the tune of Rs.1,00,000/- [Rupees One Lac] with one surety in the like amount to the satisfaction of Learned Trial Court concerned; (ii) Petitioner shall abide by all other conditions, as may be imposed by the Learned Trial Court, if any, in view of this order; (iii) Petitioner shall neither involve himself nor shall abet the commission of any offence hereinafter. Any involvement or abetting shall entail the withdrawal of concession in terms of this order; (iv) Petitioner shall disclose his functional E-Mail IDs/WhatsApp number and that of his surety to the Learned Trial Court; (v) Petitioner shall not jump over the bail and also shall not leave the country without prior information of the Court; (vi) Petitioner shall join the trial without fail, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X
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