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Allahabad High Court · body

2012 DIGILAW 1815 (ALL)

MAYANK OJHA v. STATE OF U. P.

2012-08-14

AMAR SARAN, PANKAJ NAQVI

body2012
JUDGMENT By the Court.—Heard learned counsel for the petitioner and the learned A.G.A. The aforesaid three writ petitions are being heard and disposed of together by means of this common order. 2. The FIR dated 29.6.12 at case crime No. 581 of 2012, under Section 419, 420 IPC, P.S. Kotwali,district Ballia, lodged by Jitendra Yadav, FIR dated dated 28.6.12 registered at case crime No. 578 of 2012, under Sections 419, 420, 467, 468, 471 IPC, P.S. Kotwali district Ballia, lodged by Mushtaq and FIR dated 29.6.12 registered at case crime No. 582 of 2012, under Sections 419, 420 IPC, P.S. Kotwali district Ballia, lodged by Smt. Pushpa Dwivedi have been challenged by means of these writ petitions. 3. In the first FIR, the allegations was that on 10.5.2012 when the informant Jitendra Yadav was standing in the line of the ATM of Punjab National Bank, at Omdenganj, Ballia, three unknown persons approached him and offered to help him in taking out of Rs. 5000/- from his account as he was unable to take out the money from the ATM machine. At that time the accused appears to have changed his ATM card. When he visited an ATM machine on 25.5.2012, he was unable to access his account, and visited the concerned bank where her learnt that Rs. 41,000/- had been withdrawn from his account on different dates. 4. In a similar manner in the second FIR dated 28.6.12 it is mentioned that the ATM card of Union Bank of complainant Mushtaq was also changed by three unnamed persons, who on realising that his card had been changed as he was unable to access his ATM account, contacted his Bank, where he was informed that Rs. 82,700/- has been withdrawn from his account in different transactions. 5. In the FIR lodged by Smt. Pushpa Devi dated 29.6.12 it was mentioned that as she was unable to insert her ATM card of Bank of India in the ATM machine, she was approached by some person in order to assist her, who appears to have changed her ATM card. She realized this fact subsequently when she was unable to access her ATM account, and learnt on visiting her bank that Rs. 51,500/- had been withdrawn from the said ATM. 6. She realized this fact subsequently when she was unable to access her ATM account, and learnt on visiting her bank that Rs. 51,500/- had been withdrawn from the said ATM. 6. The co-accused Vinay Kumar Singh was arrested on 29.6.2012 by SHO Sri Ashok Dixit alongwith Sri R.K. Singh and some other police personnel from Chittu Pandey Chauraha at Ballia. The complainant Mushtaq who was present at that time identified the co-accused Vinay Kumar Singh to be the person who had tried to help him withdraw money from his ATM account, and who had divested him of his card, and given him another ATM card. His two companions who were also identified by Mushtaq are however said to have run away. Thereafter Jitendra Yadav the informant of the first FIR arrived there and identified Vinay Kumar Singh to be the person who had divested him of his ATM card. Vinay Kumar Singh on questioning disclosed that he belongs to Chapra Bihar. From his possession 19 ATM cards of different Banks were recovered. He is also said to have disclosed the name of the petitioner Mayanak Ojha who is also a resident of Chapra, Bihar and another person who was a resident of Ballia to be his accomplices. He disclosed that their modus operandi was to offer assistance to persons who were having difficulties in taking out money on their cards from ATM machines. The said accused in the pretext of helping them, changed their ATM cards and thereafter they withdrew the money of the duped persons as alleged in the FIR. 7. The contention of learned counsel for the petitioners was that the petitioners were not named in the FIR. The co-accused Vinay Kumar Singh, who was also not named in the FIR has been granted bail by order of Sri Birjendra Singh, HJS, Additional Sessions Judge (Court No. 2), Ballia dated 11.7.2012 in all the three cases. The evidence against the petitioner was only the statement of the co-accused which was not admissible. The petitioner has been falsely implicated only because he was a friend of co-accused Vinay Kumar Singh, who had participated in some “Dharana” alongwith his brother-in-law and consequently some case under Section 302 IPC was registered against the Incharge SO of P.S. Nagara, Sri R.K. Singh (a member of the raiding party) for the murder of his official driver at the police station Nagara. 8. 8. Learned A.G.A opposed the submissions of learned counsel for the petitioners and stated that there was sufficient incriminating material for connecting the petitioner with this offence. As the co-accused Vinay Kumar Singh had been arrested with 19 A.T.M cards, for which he offered no satisfactory explanation, the grant of bail in this case by the Additional Sessions Judge (Court No. 2), Ballia without assigning any good reason appears to be very surprising, particularly as such ATM frauds and crimes are becoming very common. The said Judicial officer should be advised to be more careful in future before granting bails in such matters. Moreover, there is no obligation on the High Court to grant interim bail merely because the co-accused has been granted bail by a subordinate Court. At the stage of investigation the statement of co-accused Vinay Kumar Singh that the petitioner and D.D.R. Dwivedi were his accomplices who were engaged in these crimes of duping innocent persons who were facing some difficulties in withdrawing money from ATM machines, and changing their cards in the process and thereafter withdrawing substantial sums of money from their accounts, which frauds were only discovered by the duped persons much later after they revisited ATMs and found that their cards had been changed. 9. At the stage of investigation, the ultimate evidenciary value is not to be considered as the admissibility or reliability of the material under the Evidence Act are matters to be considered by the trial Court after cognizance. Initially the investigation proceeds only on the basis of incriminating material including statements of informers (who are not examined as witnesses in Court). As mentioned in Section 41(b) of the Code of Criminal Procedure any police officer may arrest a person without warrant inter alia even if only “reasonable suspicion” exists that such person has committed a cognizable offence. It may be necessary to interrogate such persons against whom there maybe even be some suspicion of involvement in a crime of the of the nature of present offence. By contrast at the stage of cognizance under Section 190 Cr.P.C, there needs to be a complaint of facts that the offence has been committed or upon a police report under Section 173(2) Cr.P.C. with the details required therein. Cognizance cannot be taken on mere suspicion at that stage. By contrast at the stage of cognizance under Section 190 Cr.P.C, there needs to be a complaint of facts that the offence has been committed or upon a police report under Section 173(2) Cr.P.C. with the details required therein. Cognizance cannot be taken on mere suspicion at that stage. Also even during trial, the statement of a co-accused implicating another accused in a joint trial is not inadmissible in view of Section 30 of the Evidence Act, especially if other corroborative material is available against the co-accused. Thus, if subsequent to the arrest and interrogation of the petitioner some other material is available by way of discovery at the instance of the said accused, it could be used alongwith the statement of the co-accused. At the stage of investigation there is no bar on arresting and interrogating an accused on the basis of a statement of a co-accused. There is no good reason for the false implication of the petitioner and no reason has been suggested as to why the co-accused Vinay Kumar Singh who was apprehended with 19 ATM cards on his person has named the petitioner as his accomplice. We therefore, find no good ground whatsoever to either quash the FIR or to grant any interim relief to the petitioner. The writ petitions has no force and it is accordingly dismissed. Let a copy of this order be forwarded to the District Judge Ballia for advice to the Judicial Officer concerned who had granted bail to the co-accused. ——————