IN THE HIGH COURT OF SIKKIM AT GANGTOK
( Criminal Jurisdiction )
DATED : 31-10-2012
Bail Application No.07/2012
CORAM
THE HON’BLE MR. JUSTICE S. P. WANGDI, JUDGE
SUNIL KUMAR MARWAHA,
VERSUS
STATE OF SIKKIM
Citation;2013 (2)Crimes 193 (Sikkim)
The present application has been preferred on a
case under Sections 420/490/471/120B IPC, being
registered against the Applicant resulting in
bailable
warrant
of
arrest
being
issued
a non-
for
his
apprehension.
Without delving much into the details of
the case, it will be sufficient to note that during the
course of the investigation by the Namchi Police, on a
complaint lodged by one Sunil Jaiswal for having been
cheated by one Ayush Kapoor and another Sanjiv
Nagar of a sum of Rs.2.5 crores, it was found that the
Applicant/Petitioner
commission
of
commencement
was
the
of
also
offence
the
involved in
giving rise
process
against
the
to
the
Applicant/Petitioner.
2.
It appears that the Applicant/Petitioner had
sought for bail in anticipation of arrest from the
Sessions Judge, South and West Sikkim at Namchi,
which had been rejected on the grounds as stated in
the Order dated 20.10.2012 passed by it. It is for this
reason the Applicant/Petitioner is before this Court.
3.
Pressing the application, Mr. Jorgay Namka,
learned Advocate submitted that the applicant is a
business man directly involved in the day to day affairs
of his business in the name and style of M/s Aeroma
Chemicals Private Ltd., M/s Maxtone Petrochemicals
and M/s Pinacle Realtors.
It is further submitted that
although the Applicant/Petitioner had been a partner in
M/S Maiden Travels, the Company involved in the
commission
of
the
offence,
he
had
severed
all
connections with it right from 15.07.2009 and a
declaration duly notarised as required under the law
had been issued by him, a copy of which has been filed
as Annexure P2 to the application.
On and from that
date he had nothing to do with M/s Maiden Travels
which would be further confirmed by the statement of
accounts of the Deutsche Bank pertaining to the
company
filed
as
Annexure
P3
for
the
period
01.01.2010 to 13.10.2012. As per him, the statement
of accounts would clearly indicate that it is rather the
two persons named in the FIR who were frequently
transacting in that account.
These are the primary
submissions made in support of the application on the
facts.
It is submitted that in law the prosecution has
not been able to make out sufficient grounds for placing
the Applicant/Petitioner in custody of the Police
and,
therefore, entitled to bail in anticipation under Section
438 Cr.P.C. 1973.
4.
submitted
Mr. J. B. Pradhan, learned Public Prosecutor,
that
the
necessity
of
taking
the
Applicant/Petitioner into custody by the Investigating
Officer has been felt imperative in view of the evidence
that have come of him threatening the complainant as
would appear from the statement of the complainant
recorded under Section 161 Cr.P.C. and also from the
entry in the case diary No.171 dated 17.10.2012.
Apart from this, Mr. Pradhan submits that from the
statement under Section 27 of the Evidence Act of
Ayush Kapoor, one of the accused persons mentioned
in the FIR, recorded by the Investigating Officer, it is
revealed that the Applicant/Petitioner continues to be a
partner in the company M/s Maiden Travels.
Mr.
Pradhan further submits that the possibility of the
Applicant/Petitioner fleeing from justice cannot be ruled
out since thus far he has been evading arrest and is
quite apparent from the fact that he has preferred to
file the present application.
5.
While fairly conceding to the position in law
that reasons have to be sufficiently set out as to why
an accused person is required to be taken into custody,
it was submitted by the learned Public Prosecutor that
for an effective investigation of the case custodial
interrogation
of
the
Applicant/Petitioner
would
be
preferred because an accused armed with an order of
bail under Section 438 Cr.P.C. would not be inclined to
co-operate.
In support of this, the learned Public
Prosecutor has referred to the decision of State Rep.
by
the
C.B.I.
vs.
Anil
Sharma
:
1997
(7)
SCC 187, more particularly paragraphs 6, 7 and 8
which we need not go into in detail.
6.
I have considered the respective submissions
of the learned Counsels and have perused the records
placed before me by both the sides.
The principle
governing Section 438 Cr.P.C. has been laid down in a
catena of decisions of the Hon’ble Supreme Court of
which the most comprehensive one is in Gurbaksh
Singh Sibbia vs. State of Punjab : 1980 (2) SCC
565.
Being a Constitutional Bench Judgment, it would
override
all those
smaller Benches.
decisions holding otherwise
by
Decisions subsequent to Gurbaksh
Singh (supra) have been explained in the later decision
of Siddharam Satlingappa Mhetre vs. State of
Maharashtra & Others : 2011 (1) SCC 694.
7.
It is a settled law that resort to precedence
and interpretation of statute would become necessary
only if there arises a doubt on the meaning and import
6
of statutory provision.
But in the case at hand, by
application of the golden rule of interpretation, a bare
perusal of Section 438 Cr.P.C. would reveal that it was
the
legislative
intent
to
make
grant
of
bail
a
rule rather than its rejection and, that the latter would
be applicable in the circumstances as set out in clauses
(i) to (iv) of sub-Section (1) of Section 438 Cr.P.C.
1973.
No doubt the learned Public Prosecutor also
referred to this provision and submitted that the nature
and gravity of the offence was serious, in as much as, a
huge sum of money was involved in the case and that
the antecedent of the Applicant/Petitioner was not
beyond reproach and as already noticed, the possibility
of the Applicant/Petitioner fleeing from justice could
also not be ruled out.
But considering that the
contentions appear to be in the realm of vagueness and
nebulous, it cannot be said that the grounds have been
made out for this Court to reject the application.
8.
Reverting back to the principle of Section 438
Cr.P.C. 1973, the law appears to be that arrest of an
accused person and his retention in custody will have
to be considered on the basis of its necessity. As has
been held in the case of Siddharam Satlingappa
Mhetre (supra) and in the case of Gurbaksh Singh
(supra),
“Personal
liberty
is
a
very
precious
7
fundamental right and it should be curtailed only when
it becomes imperative according to the peculiar facts
and circumstances of the case.” This observation
emanated of
from
the
appreciation
the
Hon’ble
Supreme Court of the third Report of the National
Police Commission where it has been noted that by and
large
nearly
60%
of
the
arrests
were
either
unnecessary or unjustified and that such unjustified
police action accounted for 43.2% of the expenditure in
the jails. It has been held in Siddharam Satlingappa
Mhetre (supra) that in case the arrest of an accused
becomes imperative, the arresting officer must clearly
record reasons for the arrest of the accused before the
arrest in the case diary, and that in exceptional cases
this could be dispensed with considering the immediate
necessity of the arrest, but even then reasons had to
be recorded immediately after the arrest.
We may
reproduce paragraph 118 in Siddhiram Satlingappa
Mhetre’s case which reads as under: -
“118. In case the arrest is imperative, according to
the facts of the case, in that event, the arresting
officer must clearly record the reasons for the arrest
of the accused before the arrest in the case diary,
but in exceptional cases where it becomes
imperative to arrest the accused immediately, the
reasons be recorded in the case diary immediately
after the arrest is made without loss of any time so
that the court has an opportunity to properly
consider the case for grant or refusal of bail in the
light of reasons recorded by the arresting officer.”
8.
As regards the principle and the ambit of the
powers under Section 438 Cr.P.C. 1973, we may refer
8
to the judgment of Gurbaksh Singh Sibbia vs. State
of Punjab, more particularly the following :-
“12. ................................Clause (1) of Section
438 is couched in terms, broad and
unqualified.
By any known canon of
construction, words of width and amplitude
ought not generally to be cut down so as to
read into the language of the statute restraints
and conditions which the legislature itself did
not think it proper or necessary to impose.
...........”
“13. ................................ The High Court and
the Court of Session to whom the application
for anticipatory bail is made ought to be left
free in the exercise of their judicial discretion
to grant bail if they consider it fit so to do on
the particular facts and circumstances of the
case and on such conditions as the case may
warrant. Similarly, they must be left free to
refuse bail if the circumstances of the case so
warrant, on considerations similar to those
mentioned in Section 437 or which are
generally considered to be relevant under
Section 439 of the Code.”
“14. Generalisations on matters which rest on
discretion and the attempt to discover
formulae of universal application when facts
are bound to differ from case to case frustrate
the very purpose of conferring discretion. No
two cases are alike on facts and therefore,
courts have to be allowed a little free play in
the joints if the conferment of discretionary
power is to be meaningful.............”
“15. Judges have to decide cases as they
come before them, mindful of the need to keep
passions and prejudices out of their decisions.
And it will be strange if, by employing judicial
artifices and techniques, we cut down the
discretion as wisely conferred upon the courts,
by devising a formula which will confine the
power to grant anticipatory bail within a strait-
jacket. While laying down cast-iron rules in a
matter like granting anticipatory bail, as the
High Court has done, it is apt to be overlooked
that even judges can have but an imperfect
awareness of the needs of new situations. Life
is never static and every situation has to be
assessed in the context of emerging concerns
as and when it arises. Therefore, even if we
were to frame a “Code for the grant of
anticipatory bail”, which really is the business
of the legislature, it can be best furnish broad
guide-lines
and
cannot
compel
blind
adherence. In which case to grant bail and in
which to refuse it is, in the very nature of
things, a matter of discretion. But apart from
the fact that the question is inherently of a
kind which calls for the use of discretion from
case to case, the legislature has, in terms
express, relegated the decision of that
question to the discretion of the court, by
providing that it may grant bail “if it thinks fit”.
The concern of the courts generally is to
preserve their discretion without meaning to
abuse it.
It will be strange if we exhibit
concern to stultify the discretion conferred
upon the courts by law.”
“31. ................ It is of paramount consideration
to remember that the freedom of the individual
is as necessary for the survival of the society
as it is for the egoistic purposes of the
individual. A person seeking anticipatory bail
is still a free man entitled to the presumption
of innocence.
He is willing to submit to
restraints on his freedom, by the acceptance of
conditions which the court may think fit to
impose, in consideration of the assurance that
if arrested, he shall be enlarged on bail.”
9.
Keeping in view the above principles of law,
the grounds set out for refusal of bail on behalf of the
prosecution appears to be quite unjustified and flimsy.
Gravity of an offence by itself is no ground for rejection
of relief under Section 438 Cr.P.C. 1973.
There are
other considerations that also require to be taken note
of.
The allegations of tampering of evidence also do
not appear to be so grave and serious as has been
made out. On a perusal of the Case Diary, it is found
that no reason has been recorded as to why the
custody of the Applicant/Petitioner is necessary.
The
Applicant/Petitioner appears to have approached the
Court of the learned Sessions Judge as soon as he
became aware of the case having been registered
against him, a remedy available under the law to the
Applicant/petitioner.
This cannot be taken as an
attempt to evade arrest.
10.
Mr. Jorgay Namka, learned Counsel for the
Applicant/Petitioner
submits
that
the
Applicant/Petitioner shall abide by all such conditions as
may be imposed by this Court in the event of the
application being allowed. It is also the submission of
Mr. J. B. Pradhan, the learned Public Prosecutor that
even if the application is to be allowed, it would be
necessary to impose stringent conditions in order to
ensure
that
the
course
of
investigation
remains
unobstructed and that the Applicant/Petitioner should
be
directed
Investigating
to
make
Officer
himself
for
the
available to the
purpose of the
investigation.
11.
For all these reasons, I am of the view that it
will be in the interest of justice if the application is
allowed
and,
is
accordingly
allowed.
The
Applicant/Petitioner on being arrested shall be released
on bail on the following terms and conditions :-
11
(i) The Applicant/Petitioner shall report to
the Investigating Officer within 3 days,
i.e., commencing from 02.11.2012 and
not later than that.
(ii) He shall remain at Namchi for a period
not less than 30 days.
(iii) He shall report to the I.O. as and when
requisitioned by him and shall not leave
station without his permission.
(iv) He shall deposit his passport with the
I.O. and shall not be released without
the leave of this Court.
(v)
He shall furnish a personal bond of Rs.1
lakh (Rupees one lakh) and a security
bond of the like sum to the satisfaction
of the learned Chief Judicial Magistrate,
Namchi, South Sikkim.
(vi) He shall not directly or indirectly make
any inducement, threat or promise to
any person acquainted with the facts of
the case.
12.
In the event of any of the terms and
conditions as set out above being violated by the
Applicant/Petitioner,
Investigating
it
Officer
shall
to
be
approach
open for the
this Court for
cancellation of the bail.
Sd/-
( S. P. Wangdi )
Judge
31.10.2012
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