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Fake Currency Racket | Accused cannot be detained by way of punishment even if prima facie case is against the accused: J&K High Court

The single judge bench of the High Court of J&K and Ladakh comprising of Justice Mohan Lal Manhas has observed that even if prima facie case is established against accused, the approach of the court in granting bail should be that the accused should not be detained by way of punishment, and regarding influencing of witnesses, the material witnesses cannot be expected to be win over by the accused.

In the instant case, the petitioner was arrested by the respondent in a fake currency racket. Subsequently, the petitioner filed an application before the court of Ld. Chief Judicial Magistrate Jammu, which rejected his bail application and consequently he filed another bail application before the court of Ld. Principal Sessions Judge Jammu, but his plea for bail was rejected. Thus, he filed the instant bail application under Section 439 CRPC before this Court.

Submissions of the Petitioner:

Sh. P.N Raina, Ld. counsel for petitioner/accused argued that the gravity of offence alone cannot be decisive ground to deny bail and protection of personal liberty is required against securing attendance of accused at trial.

He further submitted that the accused is presumed innocent till he is convicted and the court should adopt balanced approach to grant bail subject to certain conditions rather than to keep individuals under detentions for an indefinite period, and bail should not be denied to teach the accused a lesson for an offence which is yet to be proved.

He argued, that all of the co-accused persons have been enlarged on bails, and therefore, the principle of parity must apply to the case of petitioner/accused in the case in hand entitling him the concession of bail as the case of petitioner/accused is similar to that of the co-accused.

Judgments relied upon by the Petitioner:

(i) (2012) 1 Supreme Court Cases 40 (Sanjay Chandra- Appellant versus Central Bureau of Investigation- Respondent)
(ii) 2020 (1) JKJ 96(HC) (Mushtaq Ahmed Shah versus State of J&K)
(iii) (2021) 6 Supreme Court Cases 230 (Ramesh Bhavan Rathod versus Vishanbhai Hirabhai Makwana (Koli) and another)
(iv) 2021 (1) JKJ 376 (HC) (Bharat Bhushan versus UT of J&K).

Submissions of the Respondent:

Sh. Amit Gupta, Ld. AAG for respondent, opposed the bail and argued that the petitioner/accused is involved in commission of offences u/ss 489-B/489-D/120-B of IPC which deal with counterfeit currency, and its circulation in the market could give rise to existence of a parallel economy which would be highly detrimental to the growth of the nation as the same affects the society as a whole, and in such cases the harm would be caused not only to an individual or to few individuals, and the adverse impact of trafficking and counterfeit currency in large scale would be disastrous.

He further argued, that the approach of granting bail in such cases would encourage the petitioner/accused to indulge in similar offences again and again, moreover, a wrong signal/message will go to the society as a whole, and the act of petitioner/accused is an attempt to destabilize the economy of the country by circulating the counterfeit currency in the market, the offences indicted against petitioner/accused are economic offences which are detrimental for the economy of the country, the incarceration of the accused in the Judicial Custody is not a ground for granting bail to him.

Judgments Relied upon by the Respondent:

(i) Mahipal vs Rajesh Kumar @ Polia and Another
(ii) Pramod Kumar Saxena vs Union of India and others
(iii) E.P. Ahammed vs State of Kerala

Observations of the Court:

At the outset, the Hon’ble Court enumerated the factors which should be taken in consideration while grating bail or refusing bail in a non-bailable case and referred to various judgments of its Court and the Supreme Court of India.

Firstly, the Court referred to the Judgment of the Supreme Court in State of U.P vs Amarmani Tripathy, reported in 2005(8) SCC 21 wherein it has culled out certain factors to be taken in consideration while deciding bail application in non-bailable offences as under:-

“It is well settled that the matters to be considered in an application for the bail are:-

(I) whether there is any prima-facie or reasonable ground to believe that the accused has committed the offence;

(II) nature and gravity of charge;

(III) severity of the punishment in the event of conviction;

(IV) danger of the accused absconding or fleeing if released on bail; (V) character, behavior, means, position and standing of the accused;

(VI) likelihood of the offence being repeated;

(VII) reasonable apprehension of the witnesses being tampered with; and (VIII) danger, of-course the justice being thwarted by grant of bail.

Indeed, these guidelines are not exhaustive, nonetheless, these have to be considered while passing an order in a bail application in a non-bailable offence.”

The Court after applying the ratio laid down in the Judgment of its own Court in Jagdish Kumar & Ors. Versus State and Ors 2010 (3) JKJ 129 (HC) observed, that even if prima facie case is established against accused, the approach of the court in granting bail should be that the accused should not be detained by way of punishment, and regarding influencing of witnesses, the material witnesses cannot be expected to be win over by the accused.

While considering the aspect of Personal Liberty of an accused, the court referred to the judgment of its own Court in Naresh Singh Versus State of J&K and made the following observations:

“11. Ratio of the judgment (Supra) also makes the legal proposition manifest, that fundamental postulate of criminal jurisprudence is the presumption of innocence lies in favour of accused who is presumed to be innocent till guilt is proved, grant of bail is a general rule and its refusal is an exception and deprivation of personal liberty must be considered as punishment.”

The Court while upholding the principle of personal liberty as enshrined in Article-21of the Constitution of India observed that the petitioner/accused is in jail for the last ten months. The fundamental postulate of criminal jurisprudence is that an accused is presumed to be innocent till guilt is proved against him. Keeping of petitioner/accused in continuous detention would amount to infringement of his fundamental right to life and liberty and his detention would amount to inflicting pre-trial punishment which is against the mandate of criminal jurisprudence, as punishment can only be inflicted after full flagged trial and after holding the accused guilty.

In view of the above, the petition for grant of bail was allowed.

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Case Details:
Case Title and No: Vipin Pandita vs Union Territory of Jammu And Kashmir
Bail App No. 222/2021 CrlM Nos. 1998 & 1348 of 2021
Coram: Justice Mohan Lal Manhas
Counsels: Mr. P. N. Raina, Sr. Advocate with Sh. Jahanzaib A Hamal, Advocate, appeared for the Petitioner
Sh. Amit Gupta AAG, appeared for the respondent.
Date of Judgment: 07-02-2022