DAYA NAND SHARMA Vs. STATE OF H.P.

JUDGEMENT

(1.) THIS application under Section 438 of the Code of Criminal Procedure has been filed by the accused petitioner (hereafter referred to as the accused) for grant of anticipatory bail to him in case FIR No. 38 of 2004, under Section 409, IPC registered at Police Station, Manali.

(2.) ACCUSATIONS against the accused are that he was working as Incharge of H.P. Khadi and Village Industries Board, Sate Shop Manali, with effect from 23.10.1992 to 30.8.2003 and was handling the stock, stores, cash etc. of the said shop. During internal audit and physical verification of stock and stores of the said shop shortages worth Rs. 4,95,068/ - were detected. The matter was reported to the police and the aforesaid RR thus came into being. During investigation, it has been found mat a sum of Rs. 45.407.80p. has been embezzled in the years 2001 and 2002 and a further sum of Rs. 4,49,363,20p. in the year 2002 -2003 and prima facie it is suspected that the amount has been misappropriated by the accused. Investigation in the matter is on. The accused has filed the present application on the grounds that he is absolutely innocent and he was not the only person working at the shop and is willing to join the investigation if so directed.

(3.) IT may be pointed out at the very outset that the purpose behind Section 438 of the Code of Criminal Procedure is to relieve a person from unnecessary arrest and disgrace of detention in jail before he may apply for regular all in such cases where be may have been implicated falsely. Therefore, before granting anticipatory bail, the court must be satisfied that the arrest and detention of the bail petitioner will not be in furtherance of the ends of justice in relation to the case in which he is sought to be apprehended but it will be with some ulterior motive and the object of injuring the petitioner. The court has to derive the requisite satisfaction from all the material and relevant facts circumstances of the case and it cannot do so merely on the allegations of the petitioner that he has been falsely implicated and that his arrest is intended to disgrace and dishonor him. Thus, the provisions of Section 438 of the Code of Criminal Procedure cannot be applied mechanically. The mere assertion that the petitioner would co -operate during investigation in itself is not a sufficient ground for grant of anticipatory bail. On the contrary the court has to strike a balance between the liberty of the petitioner and operation of the criminal justice system. In case it is found that the grant of anticipatory bail will seriously and adversely affect the investigation this ground alone may be sufficient not to grant the anticipatory bail. 5. In Joginder Kumar Vs. State of U.P. and others (1994) 4 SCC 620, the apex court held as follows: -