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2022 DIGILAW 930 (DEL)

Suresh Kumar v. State NCT Of Delhi

2022-04-19

PRATEEK JALAN

body2022
JUDGMENT 1. This is an application under Section 439 of the Code of Criminal Procedure, 1973 ["CrPC"] for regular bail in proceedings arising out of FIR No. 56/2016, dated 11.05.2016, registered at Police Station Economic Offences Wing, South East, under Sections 420/467/468/471/120B/34 of the Indian Penal Code, 1860 ["IPC"]. 2. The original charge sheet was filed under Sections 419/420/467/468/471/120B/34 of the IPC on 22.05.2020. The accused named in the original charge sheet were Ishma Arora [hereinafter, "Ishma"] and Nitin Arora [hereinafter, "Nitin"]. The applicant was not named in the FIR or in the original charge sheet. 3. The applicant and two other persons have, however, been named in a supplementary charge sheet filed on 07.04.2021. The supplementary charge sheet was also filed without arresting the applicant. 4. The proceedings concern a complaint by the Bank of Maharashtra ["the Bank"] against Ishma, the proprietor of one Bankay Behari Trading Company, and her husband Nitin, to the effect that they have availed credit facilities from the Bank by mortgaging their property on the basis of forged documents. The complainant-Bank has alleged that the property has also been mortgaged to other banks by the same persons in different names. 5. As far as the present applicant is concerned, it is alleged that he was employed by one Sandeep Khera [hereinafter, "Sandeep"], who has also been named in the same supplementary charge sheet, and is accused of having played an active role, in conspiracy with Ishma and Nitin, to defraud the complainant-Bank. As far as the present applicant is concerned, the supplementary charge sheet records that he is an expert in operating a computer and has knowledge of scanning and printing. He was offered work by Sandeep in his office. Sandeep arranged blank e-stamp certificates and blank non-judicial papers which were used for preparation of forged titled documents. The applicant was engaged in scanning and printing the contents of the documents with the help of computer, scanner, photocopiers and other gadgets, and preparing copies by deleting the details in the original documents and inserting details, as well as by putting his fingerprints and thumb impression thereon. The applicant is accused of acting at the instance of Sandeep, in furtherance of the conspiracy with the other co-accused in this manner. It is also stated that the fingerprint examination report confirms that the fingerprints of the applicant are found on the documents in question. 6. The applicant is accused of acting at the instance of Sandeep, in furtherance of the conspiracy with the other co-accused in this manner. It is also stated that the fingerprint examination report confirms that the fingerprints of the applicant are found on the documents in question. 6. The applicant first applied for regular bail before the Sessions Court, which was rejected vide the order dated 22.06.2021. He sought setting aside of the said order by way of BAIL APPLN. 2263/2021 filed before this Court [Suresh Kumar vs. The NCT of Delhi], which was dismissed as withdrawn on 06.07.2021. He thereafter filed BAIL APPLN. 2505/2021 under Section 438 of the CrPC for anticipatory bail before this Court, which was also dismissed as withdrawn vide order dated 15.07.2021, with liberty to move a fresh application after the applicant surrenders. The applicant thereafter surrendered on 22.07.2021 but his application for bail was dismissed by the Trial Court on 18.09.2021. The applicant has thereafter moved the present application. 7. Mr. Pramod Kumar Dubey, learned Senior Counsel for the applicant, submits that, the supplementary charge sheet having been filed without arrest of the applicant, the applicant is entitled to be released on bail in terms of the judgments of this Court in Court On Its Own Motion vs. Central Bureau of Investigation [Crl.M.(M) 3875/2003, decided on 28.01.2004] and the Division Bench decision in Court On Its Own Motion vs. State [Crl. Ref. 4/2017, decided on 27.10.2017]. Mr. Dubey has placed reliance upon the judgments of the Supreme Court in Siddharth vs. State of Uttar Pradesh and Another (2022) 1 SCC 676 , Aman Preet Singh vs. C.B.I, through Director (2021) SCC Online SC 941, and the orders dated 07.10.2021 and 16.12.2021 in SLP (Crl.) 5191/2021 Satender Kumar Antil vs. Central Bureau of Investigation and Another in support of this contention. 8. Mr. Dubey also points out that the Sandeep was granted bail by the Sessions Court vide order dated 21.06.2021. 9. Although the applicant is stated to be involved in 17 other FIRs, Mr. Dubey, on instructions, states that he is on bail in all the other cases. 10. Mr. Amit Chadha, learned Additional Public Prosecutor for the State, submits that the forensic evidence on record matches the applicant's fingerprints with those found on the forged documents. 9. Although the applicant is stated to be involved in 17 other FIRs, Mr. Dubey, on instructions, states that he is on bail in all the other cases. 10. Mr. Amit Chadha, learned Additional Public Prosecutor for the State, submits that the forensic evidence on record matches the applicant's fingerprints with those found on the forged documents. As such, he submits that the applicant was directly involved in the fraudulent transactions as he was the person who was responsible for making fraudulent entries and printing and scanning the documents. 11. Having heard learned counsel for the parties, I am of the view that the applicant is entitled to be released on bail for the following reasons: (a) The first circumstance which weighs with the Court is that the applicant was not arrested during the course of investigation, and the supplementary charge sheet has been filed without arrest. Although the role of the applicant has been detailed in the supplementary charge sheet and the forensic report has also been alluded to, it is specifically stated therein that he joined investigation as and when required and that no recovery is to be effected from him. (b) In these circumstances, the judgments of this Court referred to by Mr. Dubey, and expressly approved by the Supreme Court in Siddharth (supra), are of some relevance. In Siddharth (supra), the Supreme Court, having referred to the aforesaid judgments, held as follows :- "9. We are in agreement with the aforesaid view of the High Courts and would like to give our imprimatur to the said judicial view. It has rightly been observed on consideration of Section 170 CrPC that it does not impose an obligation on the officer-in-charge to arrest each and every accused at the time of filing of the charge-sheet. We have, in fact, come across cases where the accused has cooperated with the investigation throughout and yet on the charge-sheet being filed non-bailable warrants have been issued for his production premised on the requirement that there is an obligation to arrest the accused and produce him before the court. We are of the view that if the investigating officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody. We are of the view that if the investigating officer does not believe that the accused will abscond or disobey summons he/she is not required to be produced in custody. The word "custody" appearing in Section 170 CrPC does not contemplate either police or judicial custody but it merely connotes the presentation of the accused by the investigating officer before the court while filing the charge-sheet. 10. We may note that personal liberty is an important aspect of our constitutional mandate. The occasion to arrest an accused during investigation arises when custodial investigation becomes necessary or it is a heinous crime or where there is a possibility of influencing the witnesses or accused may abscond. Merely because an arrest can be made because it is lawful does not mandate that arrest must be made. A distinction must be made between the existence of the power to arrest and the justification for exercise of it [Joginder Kumar v. State of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172]. If arrest is made routine, it can cause incalculable harm to the reputation and self-esteem of a person. If the investigating officer has no reason to believe that the accused will abscond or disobey summons and has, in fact, throughout cooperated with the investigation we fail to appreciate why there should be a compulsion on the officer to arrest the accused. 11. We are, in fact, faced with a situation where contrary to the observations in Joginder Kumar case [Joginder Kumar v. State of U.P., (1994) 4 SCC 260 : 1994 SCC (Cri) 1172] how a police officer has to deal with a scenario of arrest, the trial courts are stated to be insisting on the arrest of an accused as a prerequisite formality to take the charge-sheet on record in view of the provisions of Section 170 CrPC. We consider such a course misplaced and contrary to the very intent of Section 170 CrPC. 12. In the present case when the appellant has joined the investigation, investigation has completed and he has been roped in after seven years of registration of the FIR we can think of no reason why at this stage he must be arrested before the charge-sheet is taken on record. 12. In the present case when the appellant has joined the investigation, investigation has completed and he has been roped in after seven years of registration of the FIR we can think of no reason why at this stage he must be arrested before the charge-sheet is taken on record. We may note that the learned counsel for the appellant has already stated before us that on summons being issued the appellant will put the appearance before the trial court. " The same view is reiterated in Aman Preet Singh (supra). In the two orders referred to in the case of Satender Kumar Antil (supra), the Supreme Court has laid down, following its judgment in Siddharth (supra), that the requisite conditions for grant of bail include the following:- "REQUISITE CONDITIONS 1) Not arrested during investigation. 2) Cooperated throughout in the investigation including appearing before Investigating Officer whenever called. (No need to forward such an accused along with the chargesheet (Siddharth Vs. State of UP, 2021 SCC online SC 615)" (c) The caveat added in the order dated 07.10.2021 in Satender Kumar Antil (supra), in circumstances where the accused have not cooperated in the investigation or appeared before the Investigating Officer ["10"], nor answered the summons or where further investigation is necessary, do not apply in the facts and circumstances of the present case. By its order dated 16.12.2021, in fact, the Supreme Court made it clear that the intention of the guidelines is to ease the process of bail and not to restrict it. (d) Keeping these factors in mind, the present case clearly falls within the principle laid down in Siddharth (supra). I am unable to agree with the perfunctory observations of the Sessions Court in the order dated 18.09.2021 to the effect that Siddharth (supra) is distinguishable on facts. As the Sessions Court has not elaborated upon the reasons which led it to this view, I say no more on this aspect. (e) Another reason which weighs with the Court is that Sandeep was granted bail on 21.06.2021. Even in the supplementary charge sheet, it is expressly stated that the acts committed by the applicant were at the instance of Sandeep, who was his employer. In such circumstances, the applicant is entitled to be released even on the ground of parity. Of course, the actual role of printing, scanning etc. Even in the supplementary charge sheet, it is expressly stated that the acts committed by the applicant were at the instance of Sandeep, who was his employer. In such circumstances, the applicant is entitled to be released even on the ground of parity. Of course, the actual role of printing, scanning etc. is attributed to the applicant and not to Sandeep, but in view of the fact that Sandeep was his employer, this cannot be a ground to deny bail to the applicant. (f) Evidence has also already been collected, and as it is largely electronic in nature, there is little possibility of the applicant tampering with the evidence. 12. For the reasons aforesaid, the applicant is admitted to bail in connected with FIR No. 56/2016, dated 11.05.2016, registered at Police Station Economic Offences Wing, South East, under Sections 420/467/468/471/120B/34 of the IPC, subject to the following conditions :- a. The applicant will furnish a personal bond in the sum of INR 50,000/- with two sureties in the like amount, one of which will be from the spouse or a blood relative of the applicant, to the satisfaction of the Trial Court. b. The applicant will remain resident at the address given in the memo of parties. In the event of any change in his address, he will give prior information to the IO and the Trial Court. c. The applicant is directed to attend the Trial Court on each and every date of hearing, except if he is exempted in exceptional circumstances. 13. This order be communicated to the Jail Superintendent forthwith electronically. 14. A copy of the order be given dasti.