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Sentiments, strain, temper, and passion do not have any role to play in exercising the discretion for grant of bail bestowed unto the courts: J&K High Court

Brief Facts of the Case.

A petition was filed by the petitioner namely Hilal Rather through his wife Shazia Murtaza seeking bail in case FIR No. RC0042020A0002 dated 04.03.2020 arising out of FIR No. 13/2019 dated 27.06.2019 registered in the Police Station Anti-Corruption Bureau (ACB), Jammu, under Section5(1) (d) read with Section 5 (2) of the J&K Prevention of Corruption Act Svt. 2006 and under Sections 120-B, 409,420 and 471 of RPC implicating petitioner therein as an accused.

Thereafter vide letter dated 26.02.2020 issued by the Deputy Secretary, GAD, Govt of J&K, Civil Secretariat, Jammu, the investigation of the case was transferred to Central Bureau of Investigation (CBI) which upon receipt was re-registered as FIR bearing No. RC 0042020A002 dated 04.03.2020 under Sections under Sections 5(1) (d) read with Section 5 (2) of the J&K Prevention of Corruption Act Svt. 2006 and under Sections 120-B, 409,420 and 471 of RPC.

Upon completion of investigation Challan came to be presented before the learned Special Judge Anti-Corruption (CBI cases), Jammu i.e. the Trial court.

Petitioner filed a bail application before the Trial court on 16.01.2020, which came to be dismissed vide order dated 04.02.2020 where after the petitioner moved an application for interim bail on account of his ailing health and also outbreak of COVID-19 before the Trial court on 06.03.2020 which also was dismissed vide order dated 31.03.2020.

The petitioner after dismissal of interim bail application by the Trial court vide order dated 31.03.2020 filed an application before the HIgh Court court seeking interim bail which too was dismissed on 24.04.2020 where after the main bail application filed on 06.03.2020 before the Trial court by the petitioner was dismissed on 14.05.2020 by the Trial court. Upon dismissal of the bail application supra vide order dated 14.05.2020 by the Trial court, petitioner filed the instant bail application before the High Court.

Grounds for seeking Bail by the petitioner/Accused:

The petitioner sought his release on bail mainly on the following grounds:

  • That the ACB lodged the FIR and initiated an investigation without jurisdiction and authority of law inasmuch as the final report presented is illegal and no charges could be framed against the petitioner under the provisions of PC Act;
  • That the Trial court while dismissing his bail application vide order dated 14.05.2020 has wrongly held the petitioner to be the mastermind in the alleged scam being baseless and without any iota of truth and also being factually incorrect, in as much as, the loan in question came to be obtained by the firm from the Jammu and Kashmir Bank Branch University Campus, Jammu, by M/s Paradise Avenue for raising the construction of flats and that the said term loan was approved by the bank authorities after completing all necessary requisite formalities inasmuch as after satisfying themselves about the viability of the project,
  • That the entire loan amount availed from the bank by the firm came to be sanctioned by the bank from time to time validly as per requirement/ schedule and has been utilized for the construction of the flats/ projects.
  • That the that though FIR was registered on 27.06.2019, the petitioner was not arrested by the investigating agency and the petitioner co-operated with the investigation inasmuch as produced all documents asked by the investigating agency.
  • That assuming that there has been a breach of an agreement between the lender bank and borrower firm yet the same would not have attracted criminal prosecution.
  • That the firm repaid an amount of Rs. 33,58,34,272/= to the bank even during the moratorium period and that yet the bank invoked proceedings under SARFAESI Act against the firm and sealed the project while taking constructive possession thereof in terms of Section 13(4) of the SARFAESI Act.
  • That even though the alleged offence except 409 IPC carries a maximum punishment up to 7 years, yet Section 409 IPC was incorporated in the FIR by the respondents which is not even made out and has been incorporated to deprive the petitioner of his rights and liberty.
  • that the is entitled to bail after completion of investigation and filing of the charge sheet. Petitioner states to be suffering from various ailments having undergone surgeries besides suffering from Liver infection and respiratory problems and thus, on account of his health issue is entitled to bail more particularly on account of the outbreak of COVID-19 and overcrowding in jails.
  •  That admittedly the final report has been filed before the Trial court and that the object of bail in the first place is to secure the attendance of the accused in the trial thus, applicant/petitioner is entitled to grant of bail.
  • That admittedly the final report has been filed before the Trial court and that the object of bail in the first place is to secure the attendance of the accused in the trial thus, applicant/petitioner is entitled to grant of bail.

Grounds of Opposition/Challenge to the grant of bail by the State/Prosecution:

The State/Prosecution opposed the grant of bail to the accused-petitioner mainly on the following grounds:

  1. That the petitioner has committed economic offences and that the petitioner misappropriated the loan amount availed from the bank and utilized the same for his personal use in gross violation of terms and conditions of the letter of sanction of loan.;
  2. That the petitioner committed the economic offences while hatching a conspiracy in league and connivance with the officials of the bank as such committed acts of omission and commission in gross violation of credit policy and relevant guidelines of the bank; and,
  3. That that the petitioner being a mastermind hatched a criminal conspiracy along with the bank officers in order to cheat the bank while obtaining term loan from the bank diverted and utilized the same illegally in violation of terms and conditions for which further investigation in the matter is underway.

The pith and substance of the objections of the respondents filed in opposition to the bail application is that the release of the petitioner from custody will hamper the investigation of the case and that the petitioner will tamper with the prosecution evidence in case he is admitted to bail and that the offences committed by him (the petitioner) is an economic one and is, as such, grave in nature.

Observations and Findings of the High Court on the Grounds urged by the Petitioner:

The Court observed that the object of the grant of bail is to secure the attendance and appearance of the accused person at the trial. The law suggests that the purpose of bail is neither punitive nor

The Court said that the maxim and the axiom of the law of bail is that courts owe more than verbal respect to the principle that punishment begins after conviction and that every person is deemed to be innocent until duly tried and found guilty.

The Court further said that the grant of bail is in the discretion of the court which has to be exercised judiciously and while dealing with the bail matters, the Courts have to adopt a liberal approach and so on and so forth.

The Court further observed that the law evolved in the above judicial pronouncements makes it abundantly and explicitly clear that the rule established by Hon’ble Justice Krishna Iyer that is “Bail and not Jail” holds good even in cases relating to the commission of economic offences with a note of caution that the facts and circumstances of each case have to be tested on the bulwark of the principles laid down by the Apex court and the High courts in the matter relating to grant or refusal of bail.

The Court importantly said that the accused cannot be allowed to languish in jail till infinity, particularly when his presence is neither required during the investigation of the case, nor will the investigation suffer in case the discretion of grant of bail is exercised in his favour.

The Court while referring to the judgments said that the fundamental principle of the criminal justice system is that a person cannot be deprived of his liberty guaranteed by Article 21 of the Constitution except for a distinct breach of law.

The Court referred to Para 46 of Sanjay Chandra’s judgment which lays down that, Although the accused are charged with economic offences of huge magnitude and these offences, if approved, may jeopardize the economy of the country, yet at the same time we cannot lose sight of the fact that the investigating agency has already completed the investigation and the charge sheet is already filed before the court, therefore, the presence of the accused in custody may not be necessary for further investigation and the  appellants are entitled to the grant of bail.”

The Court while relying on the judgment supra held that the law laid down in the judgment squarely covers the facts and circumstances of the instant case and on the face of it, the petitioner deserves to be admitted to bail.

The Court importantly said that “Even otherwise as well if the statements on record and the material collected during the course of an investigation are looked into still the guilt of accused/petitioner will held to be established and proved in the trial and the presumption of law that the accused is innocent till such time that he is found guilty does hold good even in a case involving the commission of economic offences.“

The Court while allowing the bail application observed that “Deprivation of liberty tantamounts to punishment. The consequences of pre-trial detention are grave. Prison hell destroys the manifestation of feelings and sensibility of a person. The petitioner has been languishing in jail for the last more than 10 months by now and he cannot be hampered from preparing for his defence which is of the essence in a criminal trial. The discretion for grant of bail has to be exercised on the well-established propositions and principles laid down from time to time by the Apex court. Sentiments, strain, temper, and passion do not have any role to play in exercising the discretion for grant of bail bestowed unto the courts.“

Case Details:
Hilal Rather vs Union of India through CBI
Case No. Bail Application No. 77/2020
Coram: Justice Javed Iqbal Wani