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2020 DIGILAW 521 (JK)

Vishal Bhagat v. UT of JK

2020-10-06

JAVED IQBAL WANI

body2020
ORDER : Javed Iqbal Wani, J. 1. The petitioner herein through the medium of the instant application seeks bail in FIR No. 28/2019 (herein after for short the FIR) registered in Police Station, Crime Branch, Jammu for commission of offences u/s. 420, 467, 468, 471, 170, 171, 120-B RPC. Petitioner's case 2. The case set up by the petitioner in the instant application is that he has been falsely implicated in the FIR supra wherein after conclusion of investigation, a formal charge sheet came to be filed and is pending before the Court of Learned Additional Session Judge, Jammu (herein after for short the trial court). Charges are stated to have been framed by the said court and only one prosecution witness is stated to have been examined till the date of filing of the instant application. 2.1. According to the petitioner, a bail application initially came to be filed by him before the trial court along with other accused, which application however, came to be rejected vide order dated 04-07-2019. 2.2. It is being further stated that after passing of the order dated 04-07-2019 supra, another bail application came to be filed by the petitioner before this court being bail application No. 120/2019 which too came to be dismissed on 13-09-2019, wherein a detailed report was filed by the respondents alleging involvement of the petitioner in the commission of the offences in question. 2.3. According to the petitioner, one Kulbinder Singh an ex-Army Officer engaged the petitioner as a domestic help at his residence at Lower RupNagar, Jammu against monthly wages and that against the said Kulbinder Singh, respondents stated to have received a written complaint alleging that the said Kulbinder Singh has been receiving money from people against the assurance for providing them job in the Army or elsewhere. Petitioner further states that while he was performing his routine duties at the residence of Kulbinder Singh, he was taken into custody by the respondents and later labelled as a conduit of the said Kulbinder Singh, working in collusion with him for extracting money from the people. 2.4. Petitioner next in the application states that he has nothing to do with the activities of above named Kulbinder Singh and was only working as a domestic servant and that there is no evidence linking the petitioner with the allegations levelled by the respondents. 2.4. Petitioner next in the application states that he has nothing to do with the activities of above named Kulbinder Singh and was only working as a domestic servant and that there is no evidence linking the petitioner with the allegations levelled by the respondents. Petitioner further states that he has been falsely implicated in the FIR supra and came to be arrested in the month of May, 2019 and that he had earlier filed an application before the trial court for bail which due to out break of Covid-19 remained undecided on account of lockdown, but came to be dismissed on 02-06-2020 without affording an opportunity to the petitioner. 2.5. Petitioner further states to be aggrieved of aforesaid order supra of the trial court dated 02-06-2020, contending that the trial court while dismissing his bail application did not advert to the averments made in the application and the material available on record inasmuch as dismissed the same without affording an opportunity to him or his counsel through virtual mode. The trial court is stated to have committed illegality in the process dismissing the application of the petitioner on a presumption that the petitioner may attempt to influence the witnesses. 2.6. Petitioner in the application further states that one co-accused namely Prem Paul S/o Sh. Gharu Ram has already been granted bail by this court on 14-07-2020, as such, he is also entitled to the grant of bail on same lines on the ground of parity. 2.7. Petitioner next has stated in the application that he is entitled to bail on account of the directions passed by the Apex Court for constitution of High-Power Committee for considering release of under trials, convicts and other accused on account of out break of Covid-19 in order to decongest the jails. Petitioner states that he has been in custody for the last more than 14 months and his detention, as such, shall neither serve the interest of prosecution nor the cause of justice. Petitioner further states that no witness is likely to be examined by the prosecution in view of Covid-19. Respondent's case 3. Petitioner states that he has been in custody for the last more than 14 months and his detention, as such, shall neither serve the interest of prosecution nor the cause of justice. Petitioner further states that no witness is likely to be examined by the prosecution in view of Covid-19. Respondent's case 3. Respondents in their objections filed in opposition to the application of the petitioner resist and controvert the contentions and grounds raised and urged by the petitioner in the application and seek dismissal of the application on the grounds that the petitioner is involved in the commission of serious, grave and reprehensible nature of offences as he has duped and lured the complainant and others of their hard earned money on the promise of providing jobs in the Indian Army. 3.1. The respondents in their objections have alleged that the petitioner hatched intentionally, voluntarily and knowingly a criminal conspiracy in connivance with other accused persons to cheat the innocent un-employed youth of Jammu and Kathua and that the petitioner was hand in glove with the accused Kulbinder Singh who had been living on rent in the house of the petitioner. 3.2. The respondents in their objections have stated that a complaint came to be lodged by one Mohinder Kumar S/o Nek Ram R/o Shamachak (Jhiri) Jammu alleging that Kulvinder Singh, a dismissed Army Personal lured youth while impersonating himself as an Army Colonel promising them recruitment in the Indian Army against payment of Rs. 2 to 5 Lacs and that the said accused issued various fake appointment orders in favour of various innocent youth and for the purpose the said accused opened an office at Paloura, Jammu and then shifted to Muthi Camp, Jammu operating there from as well as from Janipura, Jammu and that the said accused person in connivance with the petitioner and others prepared fake orders while taking huge amounts of money from youth falsely promising them appointment in the Indian Army. 3.3. It has been further stated in the objections by the respondents that on receipt of the complaint and verification made thereof, prima facie involvement of the petitioner along with above named Kulbinder Singh and others was established, resulting into registration of the FIR supra. 3.4. 3.3. It has been further stated in the objections by the respondents that on receipt of the complaint and verification made thereof, prima facie involvement of the petitioner along with above named Kulbinder Singh and others was established, resulting into registration of the FIR supra. 3.4. According to the respondents, during the course of investigation, statements of the witnesses along with complainant were recorded and various recoveries were made upon search of the accused persons including the petitioner. The respondents state to have recorded confessions made by the accused persons during the course of investigation leading to the recoveries of various items including Laptop, Charger, Stamps, I-Cards so on and so forth. 3.5. It is being further stated by the respondents that the petitioner in furtherance of aforesaid conspiracy with the above accused persons took on rent House No. 185 Sector 3 Lower RupNagar, Jammu, which rent was being paid out of the money collected from the innocent youth by above named Kulbinder Singh along with other accused persons including the petitioner. 3.6. According to the respondents, the accused persons hatched a criminal conspiracy and under a well-knit plan induced the innocent youth to pay money under a false promise of providing them jobs in MES/Army. Further according to the respondents the above-named accused had prepared various call letters/orders/I-Cards fraudulently and had issued the same to the innocent youth against huge amounts of money through cash and online transactions. The said Kulbinder Singh according to the respondents has been asking the youth to report to Hyderabad for training/joining, wherein he had deployed the accused Mukesh Panjgotra. 3.7. According to the respondents, money deposited in the accounts of above Kulbinder Singh used to be withdrawn by above named Mukesh Panjgotra and accused Sahil Verma and an amount of Rs. 16,95,585/- had been credited in the account of Mukesh Panjgotra and an amount of Rs. 75,38,000/- had been credited in the account of Kulbinder Singh. 3.8. According to the respondents, the Stamps/I-Cards/Call letters recovered and seized have been sent to FSL Jammu, CFSL Chandigarh and CFSL Hyderabad for comparison purposes and the opinion into the matter is awaited. 3.9. 16,95,585/- had been credited in the account of Mukesh Panjgotra and an amount of Rs. 75,38,000/- had been credited in the account of Kulbinder Singh. 3.8. According to the respondents, the Stamps/I-Cards/Call letters recovered and seized have been sent to FSL Jammu, CFSL Chandigarh and CFSL Hyderabad for comparison purposes and the opinion into the matter is awaited. 3.9. The respondents in the light of aforesaid facts and circumstances state to have collected/gathered evidence against the accused persons including the petitioner connecting them with the commission of the offences in question where upon a preliminary charge sheet stands produced before the Court of City Judge JMIC. 3.10. The respondents have further stated in their objections that the investigation of the case is in progress and the remaining facts which include money trail, Bank Statements, FSL/CFSL reports etc are yet to be collected and after obtaining the same and arresting other accused a supplementary charge sheet will be produced before the court. 3.11. Lastly, the respondents in their objections have stated that if the accused/petitioner is enlarged on bail he would be embolden and may not only escape but will disappear and will also destroy the vital evidence. Heard considered and perused the material on record. 4. The pivotal allegation against the petitioner alleged by the respondents is that the petitioner conspired with other accused persons in the process of commission of the alleged offences. Since the trial is at its infancy stage in the case, it would not be appropriate for this court to dwell upon the subject matter in detail at this stage, lest it may prejudice the case of either of the parties during the trial. However, prima facie what emerges from the prosecution case is that the petitioner is one of the accused involved in the commission of offences in question as a conspirator. 4.1. It is common knowledge that generally direct evidence may not be available to prove conspiracy, inasmuch as the act of conspiracy takes place secretly. Only the conspirators would be knowing about the conspiracy. However, it may not be proper for this court while considering the instant application to make any observation in this regard. It would for the trial court during the course of trial upon evaluating the material that may suggest conspiracy. 4.2. Only the conspirators would be knowing about the conspiracy. However, it may not be proper for this court while considering the instant application to make any observation in this regard. It would for the trial court during the course of trial upon evaluating the material that may suggest conspiracy. 4.2. While considering an application for bail it is well settled by catena of Judgments of the Apex Court that courts must not go deep into merits of the matter while considering an application for bail. All that needs to be established from the record is the existence of prima facie case against the accused. Since charge sheet has been filed in the trial court, the presence of the petitioner would be required only during trial which in view of present situations (due to outbreak of Covid-19) may consume long time, as such the petitioner cannot be kept in custody for long time as a matter of punishment being already in custody for more than 14 months. 4.3. Furthermore, it is significant to mention here that the petitioner in the instant application has laid the foundation of prayer for grant of bail on the bedrock of parity and in this regard has specifically stated in Para 17 of his application as follows: "that in the same challan/case one of the co-accused namely Prem Pal S/o Sh. Gharu Ram R/o Village Haria, Chak Tehsil Marheen District Kathua has already been granted bail by this Hon'ble Court on 14-07-2020, as such, the applicant is also entitled to grant of bail on similar line on such terms and conditions as this Hon'ble Court may deem fit and proper." 4.4. In response to the aforesaid averment of the petitioner, the following is the response of the respondents stated in their objections: "that the contents of Paras 14 to 18 does not pertain to the answering respondent, therefore requires no reply." 4.5. This court is conscious of the legal position enunciated by the various Courts that parity cannot be the sole ground for granting bail yet it has also been laid down therein by the courts that if on examination of a given case it transpires that the case of petitioner before the court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should be also released on bail. 4.6. Considering the aforesaid ground of parity pressed into service by the petitioner in the instant application and upon perusal of the objections of the respondents coupled with the order passed by a co-ordinate Bench of this Court on 14-07-2020 while granting bail to co-accused namely Prem Paul, it can safely be said that the case of petitioner is similar to that of the said co-accused and as such deserves enlargement on bail as well. 4.7. Here it would be appropriate and advantageous here to refer to the Judgment of Apex Court reported in 2018 vol. 3 SCC page 22 titled as Data Ram Singh vs. State of Uttar Pradesh and Ors. wherein at Para 1, 2, 4 and 5 following is noticed. 1. "A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 2. There is no doubt that the grant or denial of bail is entirely the discretion of the Judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accuse person to police custody. 4. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accuse person to police custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in Inhuman Conditions in 1382 Prisons. 5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah vs. Union of India going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia vs. State of Punjab in which it is observed that it was held way back in Nagendra Nath Chakravarti, In that bail is not be withheld as a punishment. Reference was also made to Emperor vs. H.L. Hutchinson wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days." 4.8. It is pertinent to mention here that this court earlier in Bail Application No. 128/2020 titled as "Bharat Bhushan v/s. UT of J & K Through Crime Branch" granted bail to the petitioner therein being a co-accused of the petitioner herein in same FIR supra in terms of order dated 11-09-2020. 4.9. Viewed thus in the aforesaid backdrop, the instant application is allowed, and the petitioner/accused is held entitled to bail subject to following conditions: 1. Furnishing of personal bond to the tune of Rs. One lac with two sureties of the like amount to the satisfaction of the trial court. 2. To surrender and deposit Passport with the respondents within seven days from the date of passing of this order. 3. Not to leave the territorial jurisdiction of this Court without the permission of the trial court. 4. Not to influence directly or indirectly the prosecution witnesses or tamper with the prosecution evidence by any manner mode or method. 5. To face and take the trial before the trial court without any fail. Disposed of.