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2023-04-22 15:58:32 Himachal Pradesh Civil Judge Vacancy.


Detailed notification

Himachal Pradesh Judicial Services Recruitment, 2023 : Vacancy Out

Important Dates

Closing Date for Application Forms - 12/05/2023

Preliminary Examination - 09/07/2023

Mains Examination- 19/08/2023


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2023-04-22 13:22:56 37. Having considered the nature of allegations, material on record and the settled legal principles on grant of anticipatory bail, we are of the view that, howsoever hard or harsh it may be, the High Court ought to have refrained itself from extending protection against arrest to Respondent No. 1 in exercise of its discretionary jurisdiction under Section 438 of the CrPC.

38. Assuming Respondent No. 1 had some valid apprehensions that the actions of ACB (State Police) were actuated with extraneous reasons, he can no longer say so once the investigation has been transferred to CBI. We do not find any allegation of personal vendetta, victimisation, bias or ulterior motive against the Central Agency. In any case, CBI is expected to carry out a free, fair and dispassionate investigation with faithful observance to the rights of an accused, who is subjected to custodial interrogation.

39. The appeals are, accordingly, allowed. The impugned judgment and order of the High Court dated 19th December, 2022 is set aside and the anticipatory bail application of Respondent No. 1 is dismissed. As a consequence thereto, the order dated 30th December, 2022 passed by the Special Judge, CBI Court No. 3 partly allowing CBIs application for remand is also set aside.

40. We clarify that this Court has expressed only prima facie opinion on the merits of the allegations for the limited purpose to refuse or grant pre-arrest bail. If Respondent No. 1 moves an application for grant of regular bail before an appropriate Court, the same shall be considered on its own merits and in accordance with law, uninfluenced by the observations made hereinabove.

41. The appeals are disposed of in the above terms.

42. Pending application(s), if any, stand disposed of as well.

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2023-04-22 13:22:56 29. We have also gone through the statement of Mr. Vivek Johri, Assistant Commissioner of Income Tax who has stated that Respondent No. 1 handed over his mobile phone to him before leaving the office, which Mr. Johri later threw away.

30. The manner in which Respondent No. 1 forcefully evaded his arrest with the help of his colleagues and got the evidence destroyed, is a strong circumstance to indicate his complicity at this stage though a clear picture would emerge only on completion of investigation.

31. The nature and gravity of the alleged offence should have been kept in mind by the High Court. Corruption poses a serious threat to our society and must be dealt with iron hands. It not only leads to abysmal loss to the public exchequer but also tramples good governance. The common man stands deprived of the benefits percolating under social welfare schemes and is the worst hit. It is aptly said, "Corruption is a tree whose branches are of an unmeasurable length; they spread everywhere; and the dew that drops from thence, Hath infected some chairs and stools of authority." Hence, the need to be extra conscious.

32. From the material placed on record, it seems that prima facie, the allegations against Respondent No. 1 cannot be brushed aside lightly at this stage. There appears to be a well-organised syndicate comprising officers and officials of the Income Tax Department, businessmen and Hawala traders, who are in tandem. Such a nexus needs to be unearthed through an unimpaired and unobstructed investigation.

33. The contention that prior approval of investigation, as mandated under Section 17A of Prevention of Corruption Act, has not been obtained and thus, the proceedings initiated against Respondent No. 1 stand vitiated, has no legal or factual basis. Section 17A merely contemplates that police officers shall not conduct any enquiry, inquiry or investigation into any offence alleged to have been committed by a public servant where the alleged offence is relatable to any recommendation made or decision taken in discharge of official functions or duties, without the previous approval of the competent authority. The first proviso to the section states that such approval is not necessary in cases involving arrest of the person on the spot on the charges of accepting undue advantage.

34. As may be seen, the first proviso to Section 17A refers to cases wherein a public servant is charged with acceptance of an undue advantage or attempt thereof. A prior approval or sanction to investigate such an officer in a trap case is likely to defeat the very purpose of trap and the investigation, which is not the underlying intention of the legislature. The investigation against Respondent No. 1, being an accused of demanding a bribe, did not require any previous approval of the Central Government. That apart, the accusation against Respondent No. 1 does not revolve around any recommendations made or decisions taken by him in his quasi-judicial or administrative capacity.

35. It is true that cancellation of bail must be done only for cogent and overwhelming reasons. Nevertheless, setting aside an unjustified order granting bail is distinct from cancellation of bail. This Court would not, invariably intervene into the judicial discretion exercised by the High Court while granting bail to an accused. All that to be ensured is that the High Court exercises its discretion judiciously, cautiously and strictly in conformity with the basic principles laid down by this Court from time to time in a series of decisions.

36. The Constitution Bench in Sushila Aggarwal (supra) observed that:

"92.11. The correctness of an order granting bail, can be considered by the appellate or superior court at the behest of the State or investigating agency, and set aside on the ground that the court granting it did not consider material facts or crucial circumstances."

SUMMATION ओपन / कमेंट

2023-04-22 13:22:56 (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

23. In Sushila Aggarwal v. State (NCT of Delhi), (2020) 5 SCC 1 the Constitution Bench reiterated that while deciding applications for anticipatory bail, courts should be guided by factors like the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case.

24. The time-tested principles are that no straitjacket formula can be applied for grant or refusal of anticipatory bail. The judicial discretion of the Court shall be guided by various relevant factors and largely it will depend upon the facts and circumstances of each case. The Court must draw a delicate balance between liberty of an individual as guaranteed under Article 21 of the Constitution and the need for a fair and free investigation, which must be taken to its logical conclusion. Arrest has devastating and irreversible social stigma, humiliation, insult, mental pain and other fearful consequences. Regardless thereto, when the Court, on consideration of material information gathered by the Investigating Agency, is prima facie satisfied that there is something more than a mere needle of suspicion against the accused, it cannot jeopardise the investigation, more so when the allegations are grave in nature.

25. Keeping these principles in mind, we proceed to evaluate the rival submissions. At the outset, it is to be noted that the High Court fell in a factual error in observing that FIR was registered on 12th October, 2022 for the offence alleged to have taken place on 3rd and 4th October, 2022. The FIR was registered by the ACB against Respondent No. 1 on 4th October, 2022 under Sections 7, 13(1) and 13(2) of the Prevention of Corruption Act, 1988 and was re-registered by CBI on 12th October, 2022.

26. Further, the primary ground assigned by the High Court to grant anticipatory bail to Respondent No. 1 is that there was doubt as to the acceptance of the bribe amount since records of Dhara Angadia firm had not been produced establishing any link between Respondent No. 1 & the firm.

27. The CBI has produced the case diary which contains the statement made by Smit Thakkar, who handles Dhara Angadia firm. He has clearly stated that Malav Mehta was the owner of Vardhman account and had informed him that 30 lakhs rupees would be deposited in his account on 4th October, 2022, which in turn had to be sent to someone else. The purported recording of conversation between the complainant and Respondent No. 1 wherein Respondent No. 1 thanked the complainant, after the deposit of amount in the Vardhman account, is a reasonable link to connect Respondent No. 1 with the deposit of illegal gratification in Dhara Angadia firm, thereby prima facie showing acceptance thereof.

28. Regarding the alleged discrepancy of delay of more than 24 hours in the registration of FIR, we find from the material produced before us that the complainant started narrating the complaint at 07:15 hours and it ended at 08:00 hours on 4th October, 2022. The panchnama, annexed in the case diary, provides details of the trap laid by the ACB and lists all the activities of the ACB team on that day, thereby dispelling any doubts of mala fides on the part of the investigating agencies. ओपन / कमेंट

2023-04-22 13:22:55 x. Section 17A of the Prevention of Corruption Act, 1988 as amended in 2018, provides for a bar on any enquiry, inquiry or investigation by a police officer into an alleged offence by a public servant, where the alleged offence relates to any decision taken or recommendation made in exercise of official functions or duties, without the previous approval of the competent authority. In this case, the investigating agency has not complied with the mandatory procedure of Section 17A and has initiated investigation on the complaint without any prior approval of the Competent Authority. The breach of these mandatory conditions vitiates the proceedings initiated against Respondent No. 1;

xi. In these circumstances, the High Court has rightly granted anticipatory bail to Respondent No. 1 and has provided adequate reasoning for the same in paragraph 12 of the impugned order;

xii. Cancellation of bail has to be dealt with on a completely different footing in comparison to refusal of bail and cogent and overwhelming reasons are necessary to cancel bail once granted. Reliance has been placed in this regard on Dolat Ram v. State of Haryana, (1995) 1 SCC 349 wherein a two-judge Bench of this Court held that:

"4. Rejection of bail in a non-bailable case at the initial stage and the cancellation of bail so granted, have to be considered and dealt with on different basis. Very cogent and overwhelming circumstances are necessary for an order directing the cancellation of the bail, already granted. Generally speaking, the grounds for cancellation of bail, broadly (illustrative and not exhaustive) are: interference or attempt to interfere with the due course of administration of justice or evasion or attempt to evade the due course of justice or abuse of the concession granted to the accused in any manner. The satisfaction of the court, on the basis of material placed on the record of the possibility of the accused absconding is yet another reason justifying the cancellation of bail. However, bail once granted should not be cancelled in a mechanical manner without considering whether any supervening circumstances have rendered it no longer conducive to a fair trial to allow the accused to retain his freedom by enjoying the concession of bail during the trial."

xiii. No supervening circumstances for cancellation of bail have been pointed out by the CBI or the complainant.

ANALYSIS

22. The law on grant of anticipatory bail has been summed-up by this Court in Siddharam Satlingappa Mhetre v. State of Maharashtra, (2011) 1 SCC 694 after due deliberation on the parameters evolved by the Constitution Bench in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565. This Court held thus:

"112. The following factors and parameters can be taken into consideration while dealing with anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over-implication in the cases is a matter of common knowledge and concern; ओपन / कमेंट