Vishal v. State Of Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Reserved on: 07.05.2024

Pronounced on: 21.05.2024 Vishal

...Petitioner

Versus

State of Haryana

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Rajesh Malik, Advocate for the petitioner.

Mr. Vikrant Pamboo, Sr. DAG, Haryana.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police Station Sections 07.03.2024 ACB, Karnal, District 384, 120-B IPC and Sections 7, Anti Corruption Bureau, 7A of PC Act Haryana 1.

The petitioner, who was acting as cohort of Naveen Kumar Clerk, had allegedly received bribe of Rs.2 lacs from the complainant from not regulating and conducting the activities under PCPNDT Act in his diagnostic clinic, incarcerated in the FIR captioned above, has come up before this Court under Section 439 CrPC seeking bail. 2.

As per para 13 of the petition and para 12 of the reply dated 03.05.2024, petitioner is involved in one more case, which is as under:- Sr. No.

FIR No.

Date Offences Police Station 21.12.2023 387, 342, 34, 120-B IPC Tehsil Camp, Panipat 3.

Petitioner's counsel prays for bail by imposing any stringent conditions and is also voluntarily agreeable to the condition that till the conclusion of the trial before the trial court, the petitioner shall keep only one mobile number, which is mentioned in AADHAR card, and within fifteen days of release from prison undertakes to disconnect all other mobile numbers. The petitioner contends that the further pre-trial incarceration would cause an irreversible injustice to the petitioner and family.

4.

The state's counsel opposes the bail and states that considering the allegations and given the criminal past, the accused is not entitled to any bail. 5.

In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 3 SCC 382, Hon'ble Supreme Court holds, [10] It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc.

6.

While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the antithesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge, or when Courts quashed the FIR; the prosecution stands withdrawn, or prosecution filed a closure report; cannot be included. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles. 7.

Prosecution's case is being taken from reply dated 03.05.2024, which reads as follows:- "That the petitioner has concealed the true and material facts from this Hon'ble High Court. The true facts of the case are that on 07-03-2024, the complainant Dr. Sanjeev Chhabra S/o Rajender Chhabra R/o Village Kalayat, District Kaithal handed over his complaint to Inspector Sube Singh, Anti Corruption Bureau, Unit Kaithal wherein he had alleged that he was running an Imaging and Diagnostic Centre at Barsat Road, Panipat. In year 2023, Dr. Pawan Kumar, Nodal Officer PNDT and Naveen Kumar (co-accused) dealing clerk, Civil Hospital, Panipat had checked F-Forms (patient forms) in their centre and they issued him notice by deliberately creating errors with the intention for taking bribe. When complainant met Dr.

Pawan, then he told complainant to meet Naveen Kumar, dealing clerk in this regard. Thereafter, complainant met with co-accused and he (Naveen) told complainant to pay Rs. 3,00,000/- bribe money, as per instruction given by Dr. Pawan Kumar, this amount had been showed to Dr. Sanjeev Chhabra by (co-accused) Naveen by writing this in calculator. Thereafter, complainant gave reply to notice in December, 2023 but showed his inability to pay the said bribe amount upon which Dr.

Kumar clerk, a week ago and he informed him that this case is now no longer in the hands of the Nodal Officer alone and it will be decided by the committee now and demanded Rs. 3,00,000/- bribe money from complainant. Thereafter, on request of complainant, Naveen typed the bribe amount of Rs. 2,20,000/- on calculator and showed it to him and when he said that even this is too much, than Naveen told him that he will talk to Nodal officer. Thereafter, Naveen typed Rs. 2,00,000/- as bribe amount on his calculator with the assurance that the matter will be settled but he didn't want to pay the bribe money to Dr. Pawan Kumar, Nodal officer and Naveen Clerk, hence, the present Case FIR No. 8 dated 07-03-2024 was registered u/s 7, 7A, PC Act 1988 and 384, 120-B IPC in Police Station, Anti Corruption Bureau, Karnal Range, Karnal.

3. That thereafter, the Superintendent of Police Anti Corruption Bureau, Karnal appointed Sh. Naveen Kumar Assistant Town Planner, Panipat as Gazetted Officer upon which the Gazetted Officer /Independent witness further appointed Sh. Tantripal, driver, O/o ATP, Panipat as Shadow Witness. Raiding team was constituted and after applying Phenolphthalein powder on currency notes of Rs. 2,00,000/- the said notes were handed over to the complainant Dr. Sanjeev Chhabra who was instructed to talk with Naveen Kumar, Clerk, Civil Hospital, Panipat for his work and on raising his demand, the complainant was instructed to hand over Rs. 2,00,000/- tainted money to Naveen (co- accused).

During this, complainant asked the inspector that he had received an information from Naveen to give the bribe amount to Vishal Malik (petitioner-accused), Managing Director, Aadhar Hospital, Panipat in his hospital. The Shadow witness was also instructed to see and hear the conversation between complainant and accused and was further directed to give the appointed signal to the raiding team. List of Currency notes, memo of handing over the notes and the search memo etc. were prepared.

Thereafter, the complainant and shadow witness proceeded to meet Vishal Malik and after some time the complainant the shadow witness acted accordingly and thereafter, Vishal Malik (petitioner-accused) was apprehended inside the cabin of the Aadhar Hospital, Panipat. Upon asking him to produce the bribe money, petitioner Vishal Malik told that he had handed over the bribe money of Rs. 2,00,000/- to his employee namely Paras for keeping its safely in a particular place in Hospital.

Thereafter, petitioner Vishal Malik was arrested in the present case and he voluntarily suffered his disclosure statement (Annexure R-1) and disclosed that he took the bribe money from complainant upon asking of Naveen dealing clerk (co-accused) and his share was 10 percent out of it whereas 20 percent share was of co-accused Naveen and rest was of Dr. Pawan Nodal Officer and further offered to get the same recovered.

Thereafter, in pursuance of his disclosure statement, petitioner Vishal Malik got recovered the bribe/tainted money from his Aadhar Hospital alongwith his employee namely Paras which was taken into possession vide separate recovery memo (Annexure R-2). The hands of the complainant, Vishal Malik (petitioneraccused) and Paras were got washed separately and the solution thereof turned light pink. The currency notes, nips of hand washes were converted into sealed parcels and were taken into possession vide separate recovery memo's which were also signed by the respected witnesses. Site plan of the place of occurrence and recovery were also prepared. The investigating officer also took into possession One DVR along with adaptor and mobile of petitioner-accused Vishal Malik vide separate recovery memos and recorded the statements of witnesses u/s 161 CrPC."

8.

As per investigation, petitioner's share in the bribe was 10% of the total amount of bribe i.e. Rs.2 lacs. As per paragraph 5 of the bail petition, petitioner's total custody is more than two months. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegations and the other factors

peculiar to this case, there would be no justifiability for further pre-trial incarceration at this stage, subject to the compliance of terms and conditions mentioned in this order. Thus, the previous criminal history of the petitioner is not being considered strictly at this stage as a factor for denying bail.

9.

In Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40, Supreme Court holds, [28] We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.

10. The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

11. 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. 12.

In Madhu Tanwar v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M27097-2023, 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. 13.

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 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 court, and in case of non-availability, to any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned officer/court must satisfy 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 court 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 favor 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 the 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 S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 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. 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 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) 14.

The petitioner shall not influence, browbeat, pressurize, 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.

15.

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 canceled, and the victim/complainant may file any such application for the cancellation of bail, and the State shall file the said application. 16.

The petitioner is directed not to keep more than one prepaid SIM, i.e., one prepaid mobile phone number, till the conclusion of the trial; however, this restriction is only on prepaid SIMs [mobile numbers] and not on post-paid connections or landline numbers. The petitioner must comply with this condition within fifteen days of release from prison. The concerned DySP shall also direct all the telecom service providers to deactivate all prepaid SIM cards and prepaid mobile numbers issued to the petitioner, except the one that is mentioned as the primary number/ default number linked with the AADHAAR card and further that till the no objection from the concerned SHO, the mobile service providers shall not issue second pre-paid SIM/ mobile number in the petitioner's name.

petitioner's AADHAR details or any other source, for which they shall be legally entitled by this order. This condition shall continue till the completion of the trial or closure of the case, whichever is earlier. In Vernon v. The State of Maharashtra, 2023 INSC 655, [para 45], while granting bail under Unlawful Activities (Prevention) Act, 2002, Supreme Court had directed imposition of the similar condition, which reads as follows, "(d) Both the appellants shall use only one Mobile Phone each, during the time they remain on bail and shall inform the Investigating Officer of the NIA, their respective mobile numbers."

17.

During the trial's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condition as stipulated in this order, it shall always be permissible to the respondent to apply for cancellation of this bail. It shall further be open for any investigating agency to bring it to the notice of the Court seized of the subsequent application that the accused was earlier cautioned not to indulge in criminal activities. Otherwise, the bail bonds shall remain in force throughout the trial and after that in Section 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of conditions.

18.

The conditions mentioned above imposed by this Court are to endeavour that the accused tries to reform, does not repeat the offence and to provide a sense of security to the victim. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Petition (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A ThreeJudge bench of Hon'ble Supreme Court holds that "The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed."

19.

Any Advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order in any language that the petitioner understands.

20. If the petitioner finds bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.

21. Any observation made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.

22. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior. 23.

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. In case 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 aforesaid terms. All pending applications, if any, stand disposed. (ANOOP CHITKARA) JUDGE 21.05.2024 anju rani Whether speaking/reasoned:

Yes Whether reportable:

No.