1. Shri Onkar Chand, Chairman of MarkFed up to Oct. 1976, Member of the' Punjab State Electricity Board and General Secretary of Punjab Pradesh Congress Committee, was arrested on 5th August, 1977, in pursuance of First Information Report No. 208, registered against him for having committed offences Under Sections 161, 162, 406, 420 Indian Penal Code, read with Sections 5(1)(d)(e) and 5(2) of the Prevention of Corruption Act, 1947.
2. It is alleged in the First Information Report that Jasbir Singh, son of Jagdev Singh, complainant, had applied for a job in the Food Corporation of India. He received interview card letter No. 15880, Joginder Singh (co-accused with Onkar. Chand), who was known to the complainant already, approached him and assured him that he had an approach with Onkar Chand, :a highly connected officer, and that his son would be secured the job in question. On 15th December, 1976, the said Joginder Singh took the complainant along with his son, Jasbir Singh to House No, 330, Sector 9-A, Chandigarh. Joginder Singh went inside the the said house leaving them to wait outside. After considerable time, he emerged from the said house along with Onkar Chand. Onkar Chand told the complainant in the presence of the said Joginder Singh that his work would be done provided he arranged to pay a sum of Rs. 12000/-. He directed the- complainant to pay the said amount, of Joginder Singh. Thereafter, the said Joginder Singh was allegedly paid Rs. 10.000A- at two different points of time. When the complainant's son did not get the promised job, the complainant started asking Joginder Singh for paying the amount back, who is alleged to have been putting them off on one pretext or the other and went to the extent of executing two pronotes of Rs. 5,000/- each, to instil confidence in the complaint about his bona fides in the matter of securing a job for his son. However, ultimately when he refused point blank to refund the amount, the complainant lodged the present First Information Report. The applicant, Onkar Chand, as also Joginder Singh, aforesaid, applied for bail to the Additional Sessions Judge, Patiala, who with the following observations declined to release them:
There can be little doubt that refusal of bail is not to serve as a punitive measure, and normally, a man is entitled to be released on bail, unless, his remand to police custody is necessary to enable the Investigatory agency to, properly, investigate the case. No opinion can be expressed at this stage, on the merits of the allegations, and counter-allegations made by the learned opposing counsel, in the course of their arguments. The perusal of the police file, however, leaves no manner of doubt, that the investigating officers, reasonably require the two accused for interrogation in connection with the case in hand, and in regard to source of acquisition of moveable and immovable property worth lacs revealed to be in their possession, as set up by the prosecution. It is not alleged, in the course of their arguments, by the learned counsel for the accused (applicants), that the Investigatory agency is adopting third degree method to extract confessions from them. Under the circumstances, holding that the Investigating Officers are entitled to interrogate the two accused in the course of period of their remand, obtained, with full justification from the learned Magistrate, I do not find any cogent ground, at this stage, to release the two accused on bail and reject their prayers for being released on bail at this stage.
3. Mr. Anand Swarup, appearing for the applicant, has emphasized the fact that there was nothing further to investigate as whatever investigation had to be made must have been completed by now and that Joginder Singh, who should be considered the principal offender, had already been released on bail by the Additional Sessions Judge, Patiala, yesterday, that is, 10th August, 1977. and there was no reason as to why the applicant should be kept in jail custody.
4. Mr. Tiwana, appearing for the State, has, on the other hand, urged that the investigation against the applicant is still in progress and that the bail granted to the applicant at this stage would blunt the effectiveness of the investigative process. Replying to this, Mr. Anand Swarup contended that the investigative process is nothing but the subjection of the accused to torture and third degree methods and that having already heard a lot about the police torture chambers of Emergency days, how can the judicial conscience stomach the continued application of the very methods by declining bail to the petitioner,
5. As for the submission that Joginder Singh, the principal offender, having been already enlarged on bail it would be unreasonable to keep the petitioner in jail custody, H may be observed that Joginder Singh merely acted as a go-in-between and as an agent of the petitioner (if one has to go by the accusation in the First Information Report). Hence, it is the petitioner who has to be considered the principal offender and against him police investigation is still inconclusive.
6. As to the second limb of the argument advanced on behalf of the petitioner, I am of the opinion that the Court has to take a balanced and pragmatic view of the law and has to avoid the extremes. If police investigation centres turned into torture and death chambers during the Emergency, that was because the Courts took such extreme view of the then prevaling rule of law, if that could at all be called the rule of law, that the doors of Courts stood tightly slammed against the hapless citizens with the terrorist ruling clique blood thirsty of anyone who dared to take a just stand. But when now the doors of the Court are open at all times to everyone, such an extreme argument cannot be countenanced. It is always open to the applicant or his relations to approach the Court and have the accused brought up before the Court and have him examined by a Doctor, which facilities unfortunately could not even have been dreamt of during the Emergency period, and, therefore, analogy of what obtained during Emergency is totally irrelevant today.
7. As for the appeal to the conscience of the Court, here again I believe, it should neither go in deep slumber nor to be unbelievably sleepless. It should neither be so stone dead as to declare even such a barbarous law that denied even right to life to the citizens, as the pious rule of law and the law of the land, nor be so touchy and sensitive as to balk even at the very idea of police performing its lawful and legitimate investigative function in the case of persons accused of high corruption. While the Court is not to be swept off its feet by popular opinion for or against the accused before it, nonetheless in the context of the very recent past, if the Court's exercise of judicial discretion is to carry conviction with the people, it is advisable that its famed conscience awakens by slow degrees from its deep slumber.
8. If even a fraction of what was the voxpupuli about the magnitude of corruption to be true, then it would not be far removed from the truth, that it was the rampant corruption indulged in with impunity by highly placed persons that led to the unrest of pre-emergency days. If one is asked to name one sole factor that effectively arrested the progress of our poor society to prosperity, undeniably it is corruption. If the society in a developing country faces a menace greater than even the one from the hired assassins to its law and order, then that is from the corrupt elements at the higher echelons of the Government and of the political parties.
9. I am not oblivious of the fact that this very Court has been granting anticipatory bail to persons charged of high corruption, but speaking for myself, I am of the view that if the nation is to be saved the spectre of unrest and despondency of the pre-emergency days, then the courts have to take a very grave view of cases involving corruption charges. The Courts have to be very wary of throttling the legitimate investigation of such cases. In a society where telling lies is almost practiced as virtue, truth can be disgorged only under sustained cross-examination by the investigating officer. The Courts should endeavour to avoid taking of either such a restrictive view of the salutary bail provisions in the Criminal Procedure Code as to render itself impotent to protect an innocent person from harassment, or such a permissive view as to grant bail, anticipatory or otherwise, merely for the asking and halt even the legitimate investigation in its tracks and thereby encourage the persons, with allegations of corruption against them, to mock at the investigating agency and the society and having successfully stalled the effective investigation of the case, manage to go scot free with the loot sufficient to last for generations to come.
10. If denial of bail to a poor person,, who in a fit of rage strikes a person and gets involved in a serious criminal case is justifiable on the ground that the he is likely to subvert the justice by winning over the witnesses, there is greater justification for denying bail to persons charged of high corruption as from such elements there is greater danger of the elimination of evidence against them with free use of money power.
11. I have gone through the Zimni reports. I am, therefore, of the view that it would not be in the interest of justice to hamper the investigation by enlarging the applicant on bail. Accordingly bail is declined at this stage.
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