Court No. - 45
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 16128 of 2018 Applicant :- Rajesh Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Sheshadri Trivedi,Shri Satish Trivedi Senior Advocate Counsel for Opposite Party :- G.A.,Shad Khan,Shishir Prakash
Hon'ble Siddharth,J.
Heard Shri Satish Trivedi, Senior Advocate assisted by Sri Sheshadri Trivedi, learned counsel of the applicant, Sri Shad Khan and Shishir Prakash, learned counsels for the informant and learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Rajesh Kumar with a prayer to release him on bail in Case Crime No. 0295 of 2017, under Sections 409, 418, 420, 421, 463, 467, 468, 471, 477, 477-A, 201, 120-B & 34 IPC, Police Station Civil Lines, District Allahabad, during pendency of trial.
The argument is that the applicant is one of the co-accused implicated in the FIR dated 05.05.2017. The first information report has been lodged by the Assistant Vice President of Axis Bank against one of his employee, Kamal Ahsan and the applicant, alleging that they have colluded and concocted documents, whereby fraudulent new accounts have been opened in the name of their relatives and friends and money has been transferred in their accounts. The opening of fresh account is the responsibility of the bank and no private person can open an account on his own in the name of third party, more so, when the documents of identity proof are taken by the bank before opening the account. It is argued that in his statement, Mallapa D. Patil, Deputy Vice President, Financial Crime Management Department, Axis Bank Ltd., has stated that the balance from the year 2013 to 2016 was verified by the Pro-Vice Chancellor and Finance Controller of SHUATS. Bail applications of Robin L. Prasad and Barnabas S. Lall were rejected and the bail was granted to Ajay David and Dr. Stephen Das by this Court with regard to the same allegations of fraudulent withdrawal of money in Bail Application Nos. 40184 of 2017 and 40188 of 2017. In the bail order, finding has been recorded that the bank demanded reconciliation certificate from SHUATS for ascertaining the truth and in furtherance thereof, the SHUATS issued a reconciliation certificate signed by the Registrar, Robin L. Prasad and B.S. Lall, Finance Comptroller declaring therein that they confirm all the transactions (debits and credits) and they were in order and authentic till 31.12.2016 in all accounts as were provided by the Bank. Thereafter, the Bank demanded the quarterly reconciliation certificate till 31.12.2016 and the quarterly reconciliation certificate was again issued on 10.01.2017 by the Institute under signatures of Registrar and Finance Comptroller.
The Apex Court has also granted bail to Robin L. Prasad and Barnabas S. Lall vide order dated 23.3.2018 in Special Leave to Appeal (Crl.) Nos. 634-635 of 2018. The order of this Court as well as Apex Court are part of the record.
Sri Shad Khan and Shishir Prakash, learned counsels for the informant has argued that the applicant was the accountant, who was responsible for manipulating the entries and entering into the conspiracy with the bank staff in opening the fraudulent accounts for the purpose of transfer of public money therein. He has pointed out that the police has recovered some register, cheque books etc., from the applicant, Rajesh Kumar from his house.
Learned A.G.A. has also opposed the prayer for bail of the applicant by contending that the innocence of the applicant cannot be adjudged at pre trial stage, therefore, he does not deserves any indulgence. In case the applicant is released on bail he will again indulge in similar activities and will misuse the liberty of bail.
Keeping in view of the fact that all those, who certified the validity of the account and the transactions before the bank, have been enlarged on bail by this Court or by the Apex Court, it is unjustified to keep the applicant in jail any further. The applicant is languishing in jail since 30.8.2017. There is no criminal history to his credit.
The Apex Court in the case of Dataram Singh Vs. State of U.P. and another, (2018) 3 SCC 22 has recently considered the objects, purpose and principles of grant of bail as follows:-
“A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.
There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when Crl. Appeal No.227/2018 (@ S.L.P. (Crl.) No. 151 of 2018) Page 2 of 9required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.1 (2017) 10 SCC 658. Crl.
Appeal No.227/2018 (@ S.L.P. (Crl.) No. 151 of 2018) Page 3 of 96.
The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in NikeshTarachand Shah v. Union of India2 going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab3 in which it is observed that it was held way back in Nagendra v. King-Emperor4 that bail is not to be withheld as a punishment. Reference was also made to Emperor v. Hutchinson5 wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.”
The Apex Court in the case of Sanjay Chandra Vs. CBI, (2012) 1 SCC 40 has held that 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 can be required to ensure that an accused person will stand his trial when called upon. Seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : The other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction. 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 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.
The Apex Court in the case of Nikesh Tarachand Shah vs Union Of India, (2018) 11 Supreme Court Cases 1 has held that in paragraph No.19 In Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 at 586-588, the purpose of granting bail is set out with great felicity as follows:-
“27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King- Emperor [AIR 1924 Cal 476, 479, 480 : 25 Cri LJ 732] that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which, significantly, are the ‘Meerut Conspiracy cases’ observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [AIR 1931 All 504 : 33 Cri LJ 94] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred 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 All 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 person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor [(1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p. 242, para 1) “... the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right.”
29. In Gurcharan Singh v. State (Delhi Administration) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the court, that: (SCC p. 129, para 29) “There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case will govern the exercise of judicial discretion in granting or cancelling bail.”
30. In AMERICAN JURISPRUDENCE (2d, Volume 8, p. 806, para 39), it is stated:
“Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end.” It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.”
In the light of the principles enunciated by the Apex Court and having considered the submissions of the parties and without expressing any opinion on the merits of the case, let the applicant Rajesh Kumar involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
1. The applicant shall not tamper with the prosecution evidence by intimidating/ pressurizing the witnesses, during the investigation or trial.
2. The applicant shall cooperate in the trial sincerely without seeking any adjournment.
3. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
Order Date :- 30.7.2018 Ruchi Agrahari