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2024 DIGILAW 1105 (PNJ)

Gurbhej Singh v. U. T. Chandigarh

2024-07-29

ANOOP CHITKARA

body2024
JUDGMENT Mr. Anoop Chitkara, J. FIR No. Dated Police Station Sections 63 11.04.2024 Central Sector-17, Chandigarh 406, 420, 467, 468, 471, 120-B IPC and 13(1) of Prevention of Corruption Act, 1988 The petitioner apprehending arrest in the FIR captioned above has come up before this Court under Section 438 CrPC seeking anticipatory bail. 2. In paragraph 13 of the bail petition, the accused declares that he has no criminal antecedents. 3. The prosecution's case is being taken from reply dated 04.07.2024 filed by the Deputy Superintendent of Police, E.O.W, Sector-17, Chandigarh, which reads as follows: "3. That the brief facts of the case are that, FIR No.63 Dated 11.04.2024 Under Sections 406, 420, 467, 468, 471, 120-B of IPC and Section 13(1) of the Prevention of Corruption Act, 1900 at P.S. Central Sector, Chandigarh (Annexure P-l) has registered against M/S Star Enterprises, M/S Virk Computer Hub, M/s GuruKirpa Enterprises, M/S Guru Nanak Enterprises, Bhim Singh Clerk, the then caretaker, Ms. Kiranjit Kaur Walia, Supdt, the then DDO and Sh. N.K. Mittal the then DD Admn and others. The instant prosecution has been launched at the instance of District Food and Supply Officer, Chandigarh disclosing that the accused Gurbhej Singh being the sole Proprietor of M/s Star Enterprises along with other firms have embezzled Government money to the tune of 77 lakhs in the financial year 2014-15 and 2015-16 by committing fraud on the basis of false, forged and fabricated documents. A Committee under the Chairmanship of Sh. Surinder Singh, the then Assistant Controller, Food Accounts was constituted and it was found that above mentioned firms had grabbed Government funds in the sum of Rs. 70 lakhs in the financial year 2014-15 and Rs. 7,83,619/- in the financial year 2015-16 up to 18.05.2015 on the basis of bogus bills. Upon report of the above said committee a legal opinion was also sought from the Deputy District Attorney of the Department and he opined that huge financial implication have been involved due to wrong payments made to private firms and it is a fit case to criminally prosecute the defrauding Firms and to identify all the culprits involved in the fraud. That initially the compliant was made to Commissioner of Police, Panchkula, Flaryana vide letter dated 03.05.2019. That initially the compliant was made to Commissioner of Police, Panchkula, Flaryana vide letter dated 03.05.2019. On the said complaint, a case FIR no.75 Dated 04.03.2019 Under Sections 403, 409, 420, 467, 468, 471 of the IPC at P.S Sector 5 Panchkula, Flaryana. However, upon investigation it was concluded that the present offences are not committed within the territorial jurisdiction of Panchkula Police rather the present offences are committed within the Territorial Jurisdiction of Chandigarh Police. Thereafter a report was received in the office of SSP/UT Chandigarh from Commissioner of Police, Panchkula and the said report was marked to E.O.W cell sector 17 Chandigarh. Upon enquiry, the present FIR no.63 dated 11.04.2024 under section 406, 420, 467, 468, 471, 120-B of IPC and Section 13(1) of the Prevention of Corruption Act, 1988 at P.S. Central Sector, Chandigarh was registered." 4. Counsel for the petitioner has argued that a false case has been registered against the petitioner as a counterblast to his legal notice(s) (Annexurs P-2), Civil Suit for recovery (Annexure P-3) wherein he was seeking release of payment of his bill amount for the work which he has done, Appeal against the said Civil Suit (Annexure P-5) and petition under section 156(3) of CrPC (Annexure P-6) for penal action against the Department of Food Supplies, as the employees of the department were asking illegal gratification for sanctioning his bills and releasing of payment which were pending. He further submits that specific stand taken by the State is that no bill is over the amount of Rs. 10,000/- which is incorrect and evident from the copies of bills which are annexed as Annexure S-l which depict that the bill amount was also above Rs. 10,000/-. He further submits that the officials of the department used to ask the petitioner to pay illegal gratification for payment of bills of telephone, internet, dish TV and other purchases. He further submits that so far as the allegation levelled of no work done is concerned, it is falsified by their own notings wherein the acknowledgment of work is there and more so work orders are also part of noting. He further submits that he would have no objection in case any stringent conditions this Court might put upon the petitioner. The petitioner contends that custodial interrogation and pre-trial incarceration would cause an irreversible injustice to the petitioner and family. 5. He further submits that he would have no objection in case any stringent conditions this Court might put upon the petitioner. The petitioner contends that custodial interrogation and pre-trial incarceration would cause an irreversible injustice to the petitioner and family. 5. Counsel for U.T opposes the bail and has argued that the petitioner is the sole proprietor of firm M/s Star Enterprises who took the contract for repair of computers etc. During the period of 2014 to 2016 the embezzlement of Rs. 77 lacs have been made by the present petitioner in connivance with co-accused Davinder Singh by submitting the forged and fake bills of various Firms for doing the repair work of electronic devices whereas no such repair work has been done by the present petitioner. He submits that the bills raised by the Firm of the present petitioner and the amount claimed through it were deposited not in the accounts of the firm but in the accounts of the Care Taker Bhim Singh who is also an accused in the present FIR. He further states that considering the allegations, the petitioner's custodial interrogation is necessary. 6. An analysis of the above said arguments would lead to the outcome that the incident pertains to the years 2014 to 2016 and it is based on documentary evidence. Furthermore, the petitioner had filed a civil suit and although, the said civil suit was dismissed but according to the petitioner an appeal is pending. Keeping in view the fact that the transactions are 8-9 years old and the evidence is documentary in nature and the amount involved is Rs. 77 lakhs, coupled with the fact that the petitioner had filed a civil suit and he is first offender, therefore, it is not a case for pre trial incarceration. 7. Given the penal provisions imposed and the sentence provided by the Legislature, the nature of allegations coupled with the fact that the petitioner is a first offender, and one of the relevant factors would be to provide an opportunity to course correct. Even a prima facie perusal of paragraph 8 of the bail petition needs consideration for bail. 8. In Gurbaksh Singh Sibbia v. State of Punjab, 1980 (2) SCC 565 , (Para 30), a Constitutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. Even a prima facie perusal of paragraph 8 of the bail petition needs consideration for bail. 8. In Gurbaksh Singh Sibbia v. State of Punjab, 1980 (2) SCC 565 , (Para 30), a Constitutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying the grant or refusal of bail. In Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42 , (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are entitled to bail if the Court concerned concludes that the prosecution has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its satisfaction for the need to release such person on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application. The courts can release on bail, provided the circumstances then prevailing require, and a change in the fact situation. In State of Rajasthan v. Balchand, AIR 1977 SC 2447 , (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh when considering the question of jail. So also, the heinousness of the crime. In Gudikanti Narasimhulu v. Public Prosecutor (1978) 1 SCC 240 , (Para 16), the Supreme Court held that the delicate light of the law favors release unless countered by the negative criteria necessitating that course. In Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280 , the Supreme Court highlighted one of the factors for bail to be the public or the State's immense interest and similar other considerations. In Prahlad Singh Bhati v. NCT, Delhi, (2001) 4 SCC 280 , the Supreme Court highlighted one of the factors for bail to be the public or the State's immense interest and similar other considerations. In Dataram Singh v. State of Uttar Pradesh, 2018:INSC:107 [Para 7], (2018) 3 SCC 22 , (Para 6), the Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously, compassionately, and in a humane manner. Also, conditions for the bail grant ought not to be so strict as to be incapable of compliance, thereby making the bail grant illusory. 9. Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail, subject to the following terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973. 10. In Madhu Tanwar v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M- 27097-2023, decided on 29-05-2023, this court observed, [10] The exponential growth in technology and artificial intelligence has transformed identification techniques remarkably. Voice, gait, and facial recognition are incredibly sophisticated and pervasive. Impersonation, as we know it traditionally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from justice, then in such cases, appropriate conditions can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss. [21] In this era when the knowledge revolution has just begun, to keep pace with exponential and unimaginable changes the technology has brought to human lives, it is only fitting that the dependence of the accused on surety is minimized by giving alternative options. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate. 11. Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above in the following terms: (a). Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate. 11. Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above in the following terms: (a). Petitioner to furnish a personal bond of Rs. Ten thousand (INR 10,000/); And (b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the satisfaction of the concerned Investigator/SHO, before whom the bonds are required to be furnished. When the bonds are to be furnished before a Judicial Magistrate, then if the concerned Judicial Magistrate is unavailable, go to any other nearest llaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned officer must be satisfied that if the accused fails to appear in court, then such surety can produce the accused before the court. Or (b). Petitioner to hand over to the concerned investigator a fixed deposit for Rs. Ten thousand only (INR 10,000/-), with the clause of automatic renewal of the principal and the interest reverting to the linked account, made in favour of the 'Chief Judicial Magistrate' of the concerned district, or blocking the aforesaid amount in favour of the concerned 'Chief Judicial Magistrate'. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be permissible for the petitioner to prepare an account payee demand draft favouring concerned Chief Judicial Magistrate for a similar amount. (c). Such court shall have a lien over the funds until the case's closure or discharged by substitution, or up to the expiry of the period mentioned under Section 437A CrPC, 1973, and at that stage, subject to the proceedings under Section 446 CrPC, the entire amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor. (d). The petitioner is to also execute a bond for attendance in the concerned court(s) as and when asked to do so. (d). The petitioner is to also execute a bond for attendance in the concerned court(s) as and when asked to do so. The presentation of the personal bond shall be deemed acceptance of the declarations made in the bail petition and all other stipulations, terms, and conditions of section 438(2) of the Code of Criminal Procedure, 1973, and of this bail order. (e). While furnishing a personal bond, the petitioner shall mention the following personal identification details: 1. AADHAR number 2. Passport number (If available) when the court attesting the bonds thinks appropriate or considers the accused as a flight risk. 3. Mobile number (If available) 4. E-Mail id (If available) 12. T he petitioner is directed to join the investigation within seven days and also as and when called by the Investigator . The petitioner shall be in deemed custody for Section 27 of the Indian Evidence Act. The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer and shall cooperate with the investigation at all further stages as required. In the event of failure to do so, the prosecution will be open to seeking cancellation of the bail. Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM, let off before 6 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc. 13. The petitioner shall not influence, browbeat, pressurize, or make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence. 14. Petitioner to comply with their undertaking made in the bail petition, made before this court through counsel as reflected at the beginning of this order. If the petitioner fails to comply with any of such undertakings, then on this ground alone, the bail might be cancelled, and the victim/complainant may file any such application for the cancellation of bail, and the State shall file the said application. The bail bonds shall remain in force throughout the trial and after that in Section 437A of the Cr.P.C. if they are not cancelled due to non-appearance or breach of conditions. 15. The bail bonds shall remain in force throughout the trial and after that in Section 437A of the Cr.P.C. if they are not cancelled due to non-appearance or breach of conditions. 15. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation as per law. 16. In case the Investigator/Officer-in-Charge of the concerned Police Station arraigns another section of any penal offence in this FIR, and if the new section prescribes a maximum sentence that is not greater than the sections mentioned above, then this bail order shall be deemed to have also been passed for the newly added section(s). However, suppose the newly inserted sections prescribe a sentence exceeding the maximum sentence prescribed in the sections mentioned above; then, in that case, the Investigator/Officer-in-Charge shall give the petitioner notice of a minimum of seven days, providing an opportunity to avail the remedies available in law. 17. Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 18. There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and attest it to be a true copy. If the attesting officer wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds. Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.