Surinder Kumar Sikand Vs. State of H.P. - Court Judgment

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			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
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			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
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			'casesref' => 'State v. Anil Sharma;',
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			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
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			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
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		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
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		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
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		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
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			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
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			'casesref' => 'State v. Anil Sharma;',
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			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
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			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
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		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
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		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '2000CriLJ4207',
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			'respondent' => 'State of H.P.',
			'sub' => 'Criminal',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
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			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
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			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
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			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
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		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
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		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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orderm.r. verma, j.1. by this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) f. i. r. lodged on the basis of the report of the divisional commissioner mandi, and (ii) in the f. i. r., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under section 5 of the corruption act or any other non-bailable offences which might have been registered against him. it has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he.....

Judgment:

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			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'prhistory' => '',
			'pubs' => '2000CriLJ4207',
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			'respondent' => 'State of H.P.',
			'sub' => 'Criminal',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'surinder-kumar-sikand-vs-state-h-p'
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$url = 'https://sooperkanoon.com/case/amp/890781/surinder-kumar-sikand-vs-state-h-p'
$ctype = ' High Court'
$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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ORDER

M.R. Verma, J.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
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			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
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			'casesref' => 'State v. Anil Sharma;',
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			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'court' => 'Himachal Pradesh',
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		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
)
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1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
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		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
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		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
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		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2000CriLJ4207',
			'ratiodecidendi' => '',
			'respondent' => 'State of H.P.',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'surinder-kumar-sikand-vs-state-h-p',
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		(int) 0 => '890781',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2000CriLJ4207',
			'ratiodecidendi' => '',
			'respondent' => 'State of H.P.',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'surinder-kumar-sikand-vs-state-h-p',
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		(int) 0 => '890781',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
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			'casesref' => 'State v. Anil Sharma;',
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			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
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			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
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		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
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		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
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		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
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		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
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		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'surinder-kumar-sikand-vs-state-h-p'
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$url = 'https://sooperkanoon.com/case/amp/890781/surinder-kumar-sikand-vs-state-h-p'
$ctype = ' High Court'
$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 0 => '890781',
	(int) 1 => 'surinder-kumar-sikand-vs-state-h-p'
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$url = 'https://sooperkanoon.com/case/amp/890781/surinder-kumar-sikand-vs-state-h-p'
$ctype = ' High Court'
$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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7. Both the cases at present are under investigation.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2000CriLJ4207',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
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		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
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		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2000CriLJ4207',
			'ratiodecidendi' => '',
			'respondent' => 'State of H.P.',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'surinder-kumar-sikand-vs-state-h-p',
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		(int) 0 => '890781',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2000CriLJ4207',
			'ratiodecidendi' => '',
			'respondent' => 'State of H.P.',
			'sub' => 'Criminal',
			'link' => null,
			'circuit' => null
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	'casename_url' => 'surinder-kumar-sikand-vs-state-h-p',
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		(int) 0 => '890781',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'surinder-kumar-sikand-vs-state-h-p'
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$url = 'https://sooperkanoon.com/case/amp/890781/surinder-kumar-sikand-vs-state-h-p'
$ctype = ' High Court'
$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
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			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
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		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
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		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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$url = 'https://sooperkanoon.com/case/amp/890781/surinder-kumar-sikand-vs-state-h-p'
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$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
)
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Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'pubs' => '2000CriLJ4207',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
)
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11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
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		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2000CriLJ4207',
			'ratiodecidendi' => '',
			'respondent' => 'State of H.P.',
			'sub' => 'Criminal',
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			'circuit' => null
		)
	),
	'casename_url' => 'surinder-kumar-sikand-vs-state-h-p',
	'args' => array(
		(int) 0 => '890781',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed :

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2000CriLJ4207',
			'ratiodecidendi' => '',
			'respondent' => 'State of H.P.',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'surinder-kumar-sikand-vs-state-h-p',
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		(int) 0 => '890781',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law.

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Code Context
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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
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			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
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		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
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		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
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		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
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		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
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		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'surinder-kumar-sikand-vs-state-h-p'
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$url = 'https://sooperkanoon.com/case/amp/890781/surinder-kumar-sikand-vs-state-h-p'
$ctype = ' High Court'
$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
)
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8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
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		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
)
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'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
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		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
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		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2000CriLJ4207',
			'ratiodecidendi' => '',
			'respondent' => 'State of H.P.',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'surinder-kumar-sikand-vs-state-h-p',
	'args' => array(
		(int) 0 => '890781',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2000CriLJ4207',
			'ratiodecidendi' => '',
			'respondent' => 'State of H.P.',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'surinder-kumar-sikand-vs-state-h-p',
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		(int) 0 => '890781',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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$ctype = ' High Court'
$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
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			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
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		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
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		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
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		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'surinder-kumar-sikand-vs-state-h-p'
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$url = 'https://sooperkanoon.com/case/amp/890781/surinder-kumar-sikand-vs-state-h-p'
$ctype = ' High Court'
$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
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		'court' => 'Himachal Pradesh',
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		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
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$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
)
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5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
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		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
)
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15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
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		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
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		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
	'desc' => array(
		'Judgement' => array(
			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2000CriLJ4207',
			'ratiodecidendi' => '',
			'respondent' => 'State of H.P.',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'surinder-kumar-sikand-vs-state-h-p',
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		(int) 0 => '890781',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
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	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
			'observations' => null,
			'overruledby' => null,
			'prhistory' => '',
			'pubs' => '2000CriLJ4207',
			'ratiodecidendi' => '',
			'respondent' => 'State of H.P.',
			'sub' => 'Criminal',
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			'circuit' => null
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	'casename_url' => 'surinder-kumar-sikand-vs-state-h-p',
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		(int) 0 => '890781',
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$title_for_layout = 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | '
$desc = array(
	'Judgement' => array(
		'id' => '890781',
		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
		'authreffered' => '',
		'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
		'casenote' => ' - ',
		'caseanalysis' => null,
		'casesref' => 'State v. Anil Sharma;',
		'citingcases' => '',
		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
		'court_type' => 'HC',
		'decidedon' => '1999-12-29',
		'deposition' => 'Petition dismissed',
		'favorof' => null,
		'findings' => null,
		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
$casename_url = 'surinder-kumar-sikand-vs-state-h-p'
$args = array(
	(int) 0 => '890781',
	(int) 1 => 'surinder-kumar-sikand-vs-state-h-p'
)
$url = 'https://sooperkanoon.com/case/amp/890781/surinder-kumar-sikand-vs-state-h-p'
$ctype = ' High Court'
$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 31
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18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
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			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
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			'casesref' => 'State v. Anil Sharma;',
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			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
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			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
		'appellant' => 'Surinder Kumar Sikand',
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		'court' => 'Himachal Pradesh',
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		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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$ctype = ' High Court'
$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
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19. This application is accordingly disposed of.

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	'title_for_layout' => 'Surinder Kumar Sikand Vs State of H P - Citation 890781 - Court Judgment | ',
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			'id' => '890781',
			'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
			'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
			'appellant' => 'Surinder Kumar Sikand',
			'authreffered' => '',
			'casename' => 'Surinder Kumar Sikand Vs. State of H.P.',
			'casenote' => ' - ',
			'caseanalysis' => null,
			'casesref' => 'State v. Anil Sharma;',
			'citingcases' => '',
			'counselplain' => ' G.C. Gupta, Adv.',
			'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
			'court' => 'Himachal Pradesh',
			'court_type' => 'HC',
			'decidedon' => '1999-12-29',
			'deposition' => 'Petition dismissed',
			'favorof' => null,
			'findings' => null,
			'judge' => ' M.R. Verma, J.',
			'judgement' => 'ORDER<p style="text-align: justify;">M.R. Verma, J.</p><p style="text-align: justify;">1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p style="text-align: justify;">2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p style="text-align: justify;">3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p style="text-align: justify;">4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p style="text-align: justify;">5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p style="text-align: justify;">6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p style="text-align: justify;">7. Both the cases at present are under investigation.</p><p style="text-align: justify;">8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p style="text-align: justify;">9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p style="text-align: justify;">10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p style="text-align: justify;">No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p style="text-align: justify;">Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p style="text-align: justify;">11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p style="text-align: justify;">8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p style="text-align: justify;">9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p style="text-align: justify;">The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p style="text-align: justify;">12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p style="text-align: justify;">8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p style="text-align: justify;">'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p style="text-align: justify;">13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p style="text-align: justify;">13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p style="text-align: justify;">6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p style="text-align: justify;">14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p style="text-align: justify;">5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p style="text-align: justify;">15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p style="text-align: justify;">16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p style="text-align: justify;">17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p style="text-align: justify;">18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p style="text-align: justify;">19. This application is accordingly disposed of.<p style="text-align: justify;"></p><p style="text-align: justify;">',
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		'acts' => 'Prevention of Corruption Act - Sections 5, 13(1), 13(1)(E)(2) and 13(2); ;Code of Criminal Procedure (CrPC) , 1974 - Sections 436, 438 and 486; ;<a href="/act/51737/constitution-of-india-complete-act">Constitution of India</a> - Articles 20(2) and 21',
		'appealno' => 'Cr. M.P. (M) No. 1285 of 1999',
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		'counselplain' => ' G.C. Gupta, Adv.',
		'counseldef' => ' Sanjay Karol, Adv. General and; K.D. Batish, Addl. Adv. General and; ',
		'court' => 'Himachal Pradesh',
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		'decidedon' => '1999-12-29',
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		'judge' => ' M.R. Verma, J.',
		'judgement' => 'ORDER<p>M.R. Verma, J.</p><p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.</p><p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.</p><p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.</p><p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.</p><p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.</p><p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.</p><p>7. Both the cases at present are under investigation.</p><p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.</p><p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.</p><p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)</p><p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. </p><p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.</p><p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-</p><p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?</p><p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : </p><p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. </p><p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):</p><p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:</p><p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.</p><p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.</p><p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-</p><p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. </p><p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :</p><p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. </p><p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.</p><p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.</p><p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.</p><p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.</p><p>19. This application is accordingly disposed of.<p></p><p>',
		'observations' => null,
		'overruledby' => null,
		'prhistory' => '',
		'pubs' => '2000CriLJ4207',
		'ratiodecidendi' => '',
		'respondent' => 'State of H.P.',
		'sub' => 'Criminal',
		'link' => null,
		'circuit' => null
	)
)
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	(int) 1 => 'surinder-kumar-sikand-vs-state-h-p'
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$url = 'https://sooperkanoon.com/case/amp/890781/surinder-kumar-sikand-vs-state-h-p'
$ctype = ' High Court'
$caseref = 'State v. Anil Sharma<br>'
$content = array(
	(int) 0 => 'ORDER<p>M.R. Verma, J.',
	(int) 1 => '<p>1. By this application, the petitioner has prayed for anticipatory bail in two cases, namely, (i) F. I. R. lodged on the basis of the report of the Divisional Commissioner Mandi, and (ii) in the F. I. R., if any, lodged on the basis of an earlier inquiry pending against him, both for the commission of offences punishable under Section 5 of the Corruption Act or any other non-bailable offences which might have been registered against him. It has been averred in the application that the petitioner who is due to retire on 31 -12-1999 has been falsely implicated and is innocent and has not committed any irregularity in the purchase of cold Bitumen which has been purchased by him through negotiation and by following the proper procedure, the inquiry on the basis of which he is alleged to have made the said purchases illegally is biased, false and has been made with a view to malign the image of the petitioner without any basis. Regarding the second case it has been averred that an inquiry was ordered against the petitioner 10 years back at Kullu for collecting assets disproportionate to his income and nothing happened in that inquiry.',
	(int) 2 => '<p>2. Against the aforesaid background it is claimed that the case has been registered against the petitioner for political reasons and he has been falsely implicated whereas he is innocent. The petitioner further claims that he is a permanent resident of Himachal Pradesh and there is no likelihood of his absconding and jumping the bail, no recovery is to be effecting from him, therefore, his custody is not required by the investigating agency and that the petitioner will join the investigation as and when called by the Vigilance Department and will not tamper with the prosecution evidence.',
	(int) 3 => '<p>3. I have heard the learned counsel for the bail petitioner and the learned Advocate General for the respondent and have also gone through the relevant investigation records.',
	(int) 4 => '<p>4. A perusal of the record reveals that two F.I.Rs. have been recorded against the bail petitioner. One is F.I.R. No. 2 of 1999 dated 26-12-1999 under Section 13(2) and 13(1)(a) of the Prevention of Corruption Act at Police Station, Anti-Corruption Zone, Mandi, the other is F.I.R. No. 3/1999 dated 23-12-1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu.',
	(int) 5 => '<p>5. In case F.I.R. No. 2/1999 the allegations against the bail petitioner are that he placed supply orders of 2400 Metric Tonnes Bitumen Emulsion involving Rs. 250-85 lakhs only to one Firm which was approved on rate contract by the H. P. Controller of Stores and the rate contract of the said Firm was valid up to 30-9-1999. The lapse committed by the petitioner in placing the supply orders is that he did not place proportionate supply orders to both the Firms on approved rate contract of the Government of Himachal Pradesh and most of the orders were placed during the months of November and December, 1999 whereas the rate contract of the Firm to which the orders were placed was valid up to 30-9-1999 only. Even earlier, orders placed with this firm, namely, Sudesh Enterprises, were processed in hot haste and in one case the orders were placed on the same day when the demand letter was received and in another case within 48 hours. Thus, the gravamen of the matter is that the petitioner placed certain orders for supply of Bitumen Emulsion to the aforesaid firm in the months of November and December 1999 despite the fact that the rate contract of the said firm was valid only up to 30-9-1999 and the other firm which was on approved rate contract of the State was ignored. It is further the case against the petitioner that the petitioner ordered 11200 square meter excessive crate wire than the required quantity and there was no demand for the said meter wire from any circle. Therefore, the purchases were unjustified blocking the Government money to the extent of Rs. 7.60 lakhs. The accused further placed orders for supply of paints worth Rs. 7.58 lakhs from two firm, both of whom are though born (sic) on approved rate contract but another national reputed synthetic enamel of two firms which are also on approved rate contract was ignored and these purchases were also made in the month of November, 1999 and in hot haste manner without any demand from the subordinate offices or any urgency. Similarly, Manila/Seal ropes weighing 23 qtls. worth Rs. 8.64 lakhs were purchased by the petitioner in the months of June and November 1999 without any demand from any circle or Division working under his control. He further placed purchase orders for supply of tower bolts/handles/sliding door bolts etc. worth Rs. 4.20 lakhs in September and November 1999 without any demand from the subordinate offices. One of the purchase order dated 8-11-1999 was given to the firm M/s. Sheel Aluminium Products, Mehatpur whose rate contract had expired on 30-9-1999. Thus, these purchases were also without any demand and partly from a firm which was not on the approved rate contract of the State. The petitioner further purchased survey and drawing equipments worth Rs. 5.58 lakhs from M/s. Calcutta Survey Instruments, Rurkee and these purchases were also made without any demand from the subordinate offices. It is further the case of the prosecution that such kind of purchases are effected after the sanction of estimate but no such estimates were ever sanctioned nor any demand/requirement was received by the petitioner. These unauthorised and uncalled for purchases are stated to have been made by the petitioner at a time when he was nearing retirement and that too without any justified demand; from the concerned subordinate offices working under his control and without adequate requirement and exigencies of the public interest. It is further alleged that the petitioner has obliged the concerned firms of his own thereby given illegal benefits to them and wrongful gain to himself by use of his official position and as a consequence caused wrongful loss to the Government.',
	(int) 6 => '<p>6. The case against the petitioner in FIR No. 3/99 is that he was found to have amassed money amounting to Rupees 1,32,885/- during the period from 1980 to 1990 over and above his maximum possible income.',
	(int) 7 => '<p>7. Both the cases at present are under investigation.',
	(int) 8 => '<p>8. It was contended by the learned counsel for the bail petitioner that the cases have been registered against the petitioner for political considerations. In FIR No. 3/1999, inquiry was initially initiated sometimes in the year 1990 to find out whether his assets were lawfully acquired or not and he had explained his position and nothing was done in the matter for almost a decade and now when the petitioner is retiring, with a view to harassing a false case has been registered against him on the basis of said inquiry. It was further contended that the purchases made by the petitioner which are the basis of FIR 2/1999 were made after compliance of due formalities and within his competence. No illegality or irregularity in such purchases was committed, therefore, this FIR has also been registered against the petitioner with a view to harass and humiliate him. It was, therefore, contended by the learned counsel that the investigating agency is bent upon to arrest the petitioner without any basis and such arrest will amount to violation of the human rights and, therefore, deserves to be prevented by admitting the petitioner to anticipatory bail. In support of his contention, the learned counsel has relied on Joginder Kumar v. State of U.P. (1994) 4 SCC 260 : 1994 Cri.LJ 1981.',
	(int) 9 => '<p>9. On the other hand, it was contended by the learned Advocate General that investigation in the matter is at the initial stage and almost all the material witnesses are yet to be examined and the material documents are yet to be taken into possession, most of the witnesses are likely to be officials who had been working under the control of the petitioner as the Chief Engineeer, the other connected persons are also yet to be examined, therefore, keeping in view the nature and extent of the offences committed by the petitioner, custodial interrogation is necessary to find out the illegal pecuniary benefits obtained by the petitioner is connivance with the supplier firm which is not possible if he is released on bail. Being a very senior officer of the concerned department, he may influence the subordinate officers and witnesses and other connected persons and thereby tamper with the official documentary evidence as well as the witnesses to be examined by the investigating agency. References of all his bank accounts etc., are to be obtained and the report about the samples of the suspected Bitumen Emulsion and paints are yet to be obtained from the competent units after testing the same and since the petitioner is to retire on 31-12-1999, therefore, he may even conceal himself, is a strong possibility which cannot be ruled out particularly in view of the serious allegations and the huge amount illegally squandered by the petitioner. The learned Advocate General has further contended that in the facts and circumstances of the case, the petitioner is not entitled for anticipatory bail and to substantiate his contention has relied on Directorate of Enforcement v. P.V. Prahbhakar Rao (1997) 6 SCC 647 : 1997 Cri LJ 4634, State v. Anil Sharma (1997) 7 SCC 187 : 1997 Cri.LJ 4414 and K.K. Jerath v. Union Territory, Chandigarh (1998) 4 SCC 80 : 1998 Cri LJ 2555.',
	(int) 10 => '<p>10. The purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest or a disgrace of being detained in jail before he may apply for regular bail in such cases where he may have been implicated falsely. Therefore, before granting anticipatory bail, the Court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. However, such a satisfaction must be derived from all the material and relevant facts and circumstances of the case and cannot be based on mere allegations of the petitioner that he has been falsely implicated and his arrest is intended to disgrace and dis-honour him. Therefore, the provisions of Section 438 cannot be applied mechanically. The mere assertion that the petitioner would co-operated during investigation in itself is not a sufficient ground for grant of anticipatory bail. Therefore, the Court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. Therefore, if it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to allow anticipatory bail. In Joginder Kumar's case 1994 Cri LJ 1981 (SC) supra relied upon for the petitioner it was held by the Hon'ble Supreme Court as follows: (Para 24)',
	(int) 11 => '<p>No arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. The police officer must be able to justify the arrest from his power to do so. Arrest and detention in police lock-up of a person can cause incalculable harm to the reputation and self-esteem of a person. No arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person. It would be prudent for a police officer in the interest of protection of the constitutional rights of a citizen and perhaps in his own interest that no arrest should be made without a reason-able satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person's complicity and even so as to the need to effect arrest. Denying a person of his Liberty is a serious matter. The recommendations of the Police Commissioner merely reflect the constitutional concomitants of the fundamental right to personal liberty and freedom. A person is not liable to arrest merely on the suspicion of complicity in an offence. There must be some reason-able justification in the opinion of the officer effecting the arrest that such arrest is necessary and justified. Except in heinous offences an arrest must be avoided if a police officer issues notice to person to attend the Station House and not to leave the Station without permission would do. ',
	(int) 12 => '<p>Thus a police Officer cannot be permit-teci to arrest a person simply because he has the powers to arrest nor can such arrest be made in a routine manner in the absence of anything to prima facie substantiate the allegations and reasonable justification must be there to effect the arrest.',
	(int) 13 => '<p>11. However, in the same case it was further held as under (1994 Cri LJ 1981 at pp. 1983-84):-',
	(int) 14 => '<p>8. The horizon of human rights is expanding. At the same time, the crime rate is also increasing. Of late, this Court has been receiving complaints about violation of human rights because of indiscriminate arrests. How are we to strike a balance between the two?',
	(int) 15 => '<p>9. A realistic approach should be made in this direction. The law of arrest is one of balancing individual rights, liberties and privileges, on the one hand, and individual duties, obligations and responsibilities on the other; of weighing and balancing the rights, liberties and privileges of the single individual and those of individuals collectively ; of simply deciding what is wanted and where to put the weight and the emphasis; of deciding which comes first the criminal or society, the law violater or the law abider of meeting the challenge which Mr. Justice Cardeze so forthrightly met when he wrestled with a similar task of balancing individual rights against society's rights and wisely held that the exclusion rule was bad law, that society came first, and that the criminal should not go free because the constable blundered. In People v. Defore 1926 (242) NY 13, 24, 150 NE 585, 589 Justice Cardoze observed : ',
	(int) 16 => '<p>The question is whether protection for the individual would not be gained at a disprorportionate loss of protection for society. On the one side is the social need that crime shall be repressed. On the other, the social need that law shall not be flouted by the insolence of office. There are dangers in any choice. The rule of the Admas case People v. Adams 1903 (176) NY 351, 68 NE 636 strikes a balance between opposing interests . We must held it to be the law until those organs of government by which a change of public policy is normally effected shall give notice to the courts that change has come to pass'. 10. To the same effect is the statement by Judge Learned Hand, in Fried Re :The protection of the individual from oppression and abuse by the police and other enforcing officers is indeed a major interest in a free society; but so is the effective prosecution of crime, an interest which at times seems to be forgotten, Perfection is impossible; like other human institutions criminal proceedings must be a compromise'. The quality of a nation's civilisation can be largely measured by the methods it uses in the enforcement of criminal law. ',
	(int) 17 => '<p>12. In Directorate of Enforcement's case 1997 Cri LJ 4634 case supra the Hon'ble Supreme Court has held as follows (Para 7811):',
	(int) 18 => '<p>8. Legal position concerning the grant of anticipatory bail requires no repetition particularly in view of the decision of the Constitution Bench of this Court in Gurubaksh Singh ((1980) 2 SCC 565 : 1980 Cri LJ 1125) which has settled the position well-nigh. Nonetheless, we remind ourselves that the order contemplated under Section 438 of the Code is to be granted or refused by the High Court or a Court of Session, after exercising its judicial discretion wisely. The Constitution Bench in Gurubaksh Singh said thus : SCC p. 584, para 21 : at p. 1137 of Cri LJ:',
	(int) 19 => '<p>'21 A wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use. Every kind of judicial discretion, whatever may be the nature of the matter in regard to which it is required to be exercised, has to be used with due care and caution. In fact, an awareness, of the context in which the discretion is required to be exercised and of the reasonably foreseeable consequences of its use, is the hallmark of a prudent exercise of judicial discretion. One ought not to make a bugbear of the power to grant anticipatory bail.',
	(int) 20 => '<p>13. When the learned Single Judge himself felt, after going through the records in this case, that the materials already collected were capable of stretching an accusing finger towards the respondent, it was not at all a proper exercise of the discretion by favouring him with an order of anticipatory bail under Section 438 of the Code.',
	(int) 21 => '<p>13. In case State v. Anil Sharma 1997 Cri LJ 4414 supra the Hon'ble Supreme Court held as under :-',
	(int) 22 => '<p>6. We find force in the submission of the CBI that custodial interrogation is qualitatively more elicitation-oriented than questioning a suspect who is well ensconced with a favourable order under Section 438 of the Code. In a case like this effective interrogation of a suspected person is of tremendous advantage in disinterring many useful informations and also materials which would have been concealed. Success in such interrogation would elude if the suspected person knows that he is well protected and insulated by a pre-arrest bail order during the time he is interrogated. Very often interrogation in such a condition would reduce to a mere ritual. The argument that the custodial interrogation is fraught with the danger of the person being subjected to third-degree methods need not be countenanced, for, such an argument can be advanced by all accused in all criminal cases. The Court has to presume that responsible police officers would conduct themselves in a responsible manner and that those entrusted with the task of disinterring offences would not conduct themselves as offenders. ',
	(int) 23 => '<p>14. In K.K. Jerath's case 1998 Cri.LJ 2555 supra the Hon'ble Supreme Court held as under :',
	(int) 24 => '<p>5. We don not wish to enter into any detailed discussion on these legal aspects raised by the learned counsel for the respondents as this Court in the several decisions referred to by the learned counsel for the petitioner has explained the scope of the provisions of Articles 20(2) and 21 of the Constitution and Section 486 (sic 436) of the Code of Criminal Procedure and their interrelationship. We may only state in considering a petition for grant of bail, necessarily, if public interest requires detention of citizen in custody for purposes of investigation could be considered and rejected as otherwise there could be hurdles in the investigation even resulting in tampering of evidence This very aspect has been borne in mind by the High Court. On the facts and in the circumstances of the case, we do not think there is any good reason to interfere with the order made by the High Court in refusing bail at this stage of the proceedings. The special leave petition is, therefore, dismissed. ',
	(int) 25 => '<p>15. In view of the above decisions what finally emerges is that in a case where the Court is satisfied that there is material on the record to show the involvement of the petitioner in the commission of an offence and that the grant of bail to the petitioner will prejudice the investigation by operating as a wall between the accused and the police particularly in a case where custodial interrogation is necessary and will also prejudice the criminal justice the bail should be refused.',
	(int) 26 => '<p>16. The facts as alleged by the prosecution have already been noticed here-in-above which disclose grounds for arrest and interrogation of the accused keeping in view the magnitude of the accusations against the petitioner in F.I.R. No. 2/1999 the custodial interrogation seems to be necessary. The most material witnesses in the case who have been working under the accused and in the involved firms are yet to be examined and the records with the offices of and under the control of the petitioner and with the Firms are yet to be taken in possession. Therefore, directing the release of the petitioner on anticipatory bail in this F.I.R. will be prejudicial to the investigation and will virtually be giving an opportunity to the accused to tamper with the evidence. It was though contended by the learned counsel for the petitioner that he has been presently suspended and will retire from service on 31-12-1999, therefore, he will have no control over the officers and officials who were earlier working under his control. Losing control of an office either by suspension or by retirement is one thing but to have access to and contact with the officials manning such offices is an entirely different matter. Even the access to and contact with the witnesses irrespective of having no control on them at present but admittedly immediately before the registration of the case can afford an opportunity to the petitioner to tamper with the prosecution evidence. The evidence which may be available either in the form of documents or in the form of witnesses in the offices of the concerned Firms can be tampered with. Therefore, the likelihood that if released on bail the petitioner may tamper with the prosecution evidence is so strong that it cannot be conveniently ruled out. Against this background I am of the view that the petitioner is not entitled for anticipatory bail in case FIR No. 2/1999.',
	(int) 27 => '<p>17. So far as the case F.I.R. No. 3/1999 is concerned it has been under inquiry for the last about 9 years. There is no substantial reason as to why the registration of the case against the accused petitioner in this case was so much delayed. The delay factor in itself entitles the petitioner to bail in this case.',
	(int) 28 => '<p>18. In view of the above discussion, it is ordered that in the event of arrest of the petitioner in case F.I.R. No. 3/1999 under Section 13(1)(E)(2) of the Prevention of Corruption Act registered at Police Station Anti Corruption Zone, Kullu he be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the Investigating officer or the Officer Incharge of the concerned Police Station. However, in F.I.R. No. 2/1999 under Sections 13(2) and 13(1)(b) of the Prevention of Corruption Act registered at Police Station, A.C. Zone, Mandi, the petitioner is not entitled for anticipatory bail, therefore, the prayer for his release on anticipatory bail in the said F.I.R. is dismissed.',
	(int) 29 => '<p>19. This application is accordingly disposed of.<p>',
	(int) 30 => '<p>'
)
$paragraphAfter = (int) 1
$cnt = (int) 31
$i = (int) 30
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