Judgment:
Oral: (Wangdi, J.)
1. The present application has been preferred on a case under Sections 420/490/471/120B IPC, being registered against the Applicant resulting in a nonbailable warrant of arrest being issued for his apprehension. Without delving much into the details of the case, it will be sufficient to note that during the course of the investigation by the Namchi Police, on a complaint lodged by one Sunil Jaiswal for having been cheated by one Ayush Kapoor and another Sanjiv Nagar of a sum of Rs.2.5 crores, it was found that the Applicant/Petitioner was also involved in the commission of the offence giving rise to commencement of the process against the Applicant/Petitioner.
2. It appears that the Applicant/Petitioner had sought for bail in anticipation of arrest from the Sessions Judge, South and West Sikkim at Namchi, which had been rejected on the grounds as stated in the Order dated 20.10.2012 passed by it. It is for this reason the Applicant/Petitioner is before this Court.
3. Pressing the application, Mr. Jorgay Namka, learned Advocate submitted that the applicant is a business man directly involved in the day to day affairs of his business in the name and style of M/s Aeroma Chemicals Private Ltd., M/s Maxtone Petrochemicals and M/s Pinacle Realtors. It is further submitted that although the Applicant/Petitioner had been a partner in M/S Maiden Travels, the Company involved in the commission of the offence, he had severed all connections with it right from 15.07.2009 and a declaration duly notarised as required under the law had been issued by him, a copy of which has been filed as Annexure P2 to the application. On and from that date he had nothing to do with M/s Maiden Travels which would be further confirmed by the statement of accounts of the Deutsche Bank pertaining to the company filed as Annexure P3 for the period 01.01.2010 to 13.10.2012. As per him, the statement of accounts would clearly indicate that it is rather the two persons named in the FIR who were frequently transacting in that account. These are the primary submissions made in support of the application on the facts. It is submitted that in law the prosecution has not been able to make out sufficient grounds for placing the Applicant/Petitioner in custody of the Police and, therefore, entitled to bail in anticipation under Section 438 Cr.P.C. 1973.
4. Mr. J. B. Pradhan, learned Public Prosecutor, submitted that the necessity of taking the Applicant/Petitioner into custody by the Investigating Officer has been felt imperative in view of the evidence that have come of him threatening the complainant as would appear from the statement of the complainant recorded under Section 161 Cr.P.C. and also from the entry in the case diary No.171 dated 17.10.2012. Apart from this, Mr. Pradhan submits that from the statement under Section 27 of the Evidence Act of Ayush Kapoor, one of the accused persons mentioned in the FIR, recorded by the Investigating Officer, it is revealed that the Applicant/Petitioner continues to be a partner in the company M/s Maiden Travels. Mr. Pradhan further submits that the possibility of the Applicant/Petitioner fleeing from justice cannot be ruled out since thus far he has been evading arrest and is quite apparent from the fact that he has preferred to file the present application.
5. While fairly conceding to the position in law that reasons have to be sufficiently set out as to why an accused person is required to be taken into custody, it was submitted by the learned Public Prosecutor that for an effective investigation of the case custodial interrogation of the Applicant/Petitioner would be preferred because an accused armed with an order of bail under Section 438 Cr.P.C. would not be inclined to co-operate. In support of this, the learned Public Prosecutor has referred to the decision of State Rep. by the C.B.I. vs. Anil Sharma : 1997 (7) SCC 187, more particularly paragraphs 6, 7 and 8 which we need not go into in detail.
6. I have considered the respective submissions of the learned Counsels and have perused the records placed before me by both the sides. The principle governing Section 438 Cr.P.C. has been laid down in a catena of decisions of the Honble Supreme Court of which the most comprehensive one is in Gurbaksh Singh Sibbia vs. State of Punjab : 1980 (2) SCC 565. Being a Constitutional Bench Judgment, it would override all those decisions holding otherwise by smaller Benches. Decisions subsequent to Gurbaksh Singh (supra) have been explained in the later decision of Siddharam Satlingappa Mhetre vs. State of Maharashtra and Others : 2011 (1) SCC 694.
7. It is a settled law that resort to precedence and interpretation of statute would become necessary only if there arises a doubt on the meaning and import of statutory provision. But in the case at hand, by application of the golden rule of interpretation, a bare perusal of Section 438 Cr.P.C. would reveal that it was the legislative intent to make grant of bail a rule rather than its rejection and, that the latter would be applicable in the circumstances as set out in clauses (i) to (iv) of sub-Section (1) of Section 438 Cr.P.C. 1973. No doubt the learned Public Prosecutor also referred to this provision and submitted that the nature and gravity of the offence was serious, in as much as, a huge sum of money was involved in the case and that the antecedent of the Applicant/Petitioner was not beyond reproach and as already noticed, the possibility of the Applicant/Petitioner fleeing from justice could also not be ruled out. But considering that the contentions appear to be in the realm of vagueness and nebulous, it cannot be said that the grounds have been made out for this Court to reject the application.
8. Reverting back to the principle of Section 438 Cr.P.C. 1973, the law appears to be that arrest of an accused person and his retention in custody will have to be considered on the basis of its necessity. As has been held in the case of Siddharam Satlingappa Mhetre (supra) and in the case of Gurbaksh Singh (supra), âPersonal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case.â This observation emanated from the appreciation of the Honble Supreme Court of the third Report of the National Police Commission where it has been noted that by and large nearly 60% of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2% of the expenditure in the jails. It has been held in Siddharam Satlingappa Mhetre (supra) that in case the arrest of an accused becomes imperative, the arresting officer must clearly record reasons for the arrest of the accused before the arrest in the case diary, and that in exceptional cases this could be dispensed with considering the immediate necessity of the arrest, but even then reasons had to be recorded immediately after the arrest. We may reproduce paragraph 118 in Siddhiram Satlingappa Mhetres case which reads as under: -
â118. In case the arrest is imperative, according to the facts of the case, in that event, the arresting officer must clearly record the reasons for the arrest of the accused before the arrest in the case diary, but in exceptional cases where it becomes imperative to arrest the accused immediately, the reasons be recorded in the case diary immediately after the arrest is made without loss of any time so that the court has an opportunity to properly consider the case for grant or refusal of bail in the light of reasons recorded by the arresting officer.â
8. As regards the principle and the ambit of the powers under Section 438 Cr.P.C. 1973, we may refer to the judgment of Gurbaksh Singh Sibbia vs. State of Punjab, more particularly the following :-
â12. â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦..Clause (1) of Section 438 is couched in terms, broad and unqualified. By any known canon of construction, words of width and amplitude ought not generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose.
â¦â¦â¦..â
â13. â¦â¦â¦â¦â¦â¦â¦â¦â¦â¦.. The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant. Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code.â
â14. Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion. No two cases are alike on facts and therefore, courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningfulâ¦â¦â¦â¦.â
â15. Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if, by employing judicial artifices and techniques, we cut down the discretion as wisely conferred upon the courts, by devising a formula which will confine the power to grant anticipatory bail within a straitjacket. While laying down cast-iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even judges can have but an imperfect awareness of the needs of new situations. Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises. Therefore, even if we were to frame a âCode for the grant of anticipatory bailâ, which really is the business of the legislature, it can be best furnish broad guide-lines and cannot compel blind adherence. In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion. But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the court, by providing that it may grant bail âif it thinks fitâ. The concern of the courts generally is to preserve their discretion without meaning to abuse it. It will be strange if we exhibit concern to stultify the discretion conferred upon the courts by law.â
â31. â¦â¦â¦â¦â¦. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.â
9. Keeping in view the above principles of law, the grounds set out for refusal of bail on behalf of the prosecution appears to be quite unjustified and flimsy. Gravity of an offence by itself is no ground for rejection of relief under Section 438 Cr.P.C. 1973. There are other considerations that also require to be taken note of. The allegations of tampering of evidence also do not appear to be so grave and serious as has been made out. On a perusal of the Case Diary, it is found that no reason has been recorded as to why the custody of the Applicant/Petitioner is necessary. The Applicant/Petitioner appears to have approached the Court of the learned Sessions Judge as soon as he became aware of the case having been registered against him, a remedy available under the law to the Applicant/petitioner. This cannot be taken as anattempt to evade arrest.
10. Mr. Jorgay Namka, learned Counsel for the Applicant/Petitioner submits that the Applicant/Petitioner shall abide by all such conditions as may be imposed by this Court in the event of the application being allowed. It is also the submission of Mr. J. B. Pradhan, the learned Public Prosecutor that even if the application is to be allowed, it would be necessary to impose stringent conditions in order to ensure that the course of investigation remains unobstructed and that the Applicant/Petitioner should be directed to make himself available to the Investigating Officer for the purpose of the investigation.
11. For all these reasons, I am of the view that it will be in the interest of justice if the application is allowed and, is accordingly allowed. The Applicant/Petitioner on being arrested shall be released on bail on the following terms and conditions :-
(i) The Applicant/Petitioner shall report to the Investigating Officer within 3 days, i.e., commencing from 02.11.2012 and not later than that.
(ii) He shall remain at Namchi for a period not less than 30 days.
(iii) He shall report to the I.O. as and when requisitioned by him and shall not leave station without his permission.
(iv) He shall deposit his passport with the I.O. and shall not be released without the leave of this Court.
(v) He shall furnish a personal bond of Rs.1 lakh (Rupees one lakh) and a security bond of the like sum to the satisfaction of the learned Chief Judicial Magistrate, Namchi, South Sikkim.
(vi) He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case.
12. In the event of any of the terms and conditions as set out above being violated by the Applicant/Petitioner, it shall be open for the Investigating Officer to approach this Court for cancellation of the bail.