Sukhvinder @ Sukhvinder Singh And Another v. State Of Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH CRM-M-30450-2024 (O&M) Date of order: 02.07.2024 Sukhvinder @ Sukhvinder Singh and another ... Petitioner(s)

Versus

State of Haryana

...Respondent (s)

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA Present:- Mr. Lajpat Rai Sharma, Advocate for the petitioner(s).

Mr. Vikrant Pamboo, Sr. D.A.G., Haryana.

*** ANOOP CHITKARA, J.

FIR No.

Dated Police Station Sections 3.4.2024 Sadar Safidon, District Jind 406, 420 IPC 1.

The petitioners apprehending arrest in the FIR captioned above, have come up before this Court under Section 438 CrPC seeking anticipatory bail. 2.

In paragraph 18 and 19 of the bail petition, the petitioners declare that they have no criminal antecedents.

3.

Facts of the case are taken from the reply filed by the State by way of affidavit of concerned DySP, which reads as under:

(i) The aforementioned FIR has been registered on the complaint of Rohtash son of Ramphal a resident of Karkhana. The complaint alleges that petitioner No.1, Sukhvinder is a co-villager of the complainant and known to him, claimed that he and his friend worked together to send children abroad at a low cost. Influenced by Sukhvinder's words, Rohtash was taken to Amrit a resident of Aftabgarh. Amrit then spoke to his uncle, Jasveer Singh, a resident of Urlana Kalan, now Assandh. Amrit informed Rohtash that Jasveer Singh was a certified agent and he worked closely with the famous agent Sulkhan Singh, also known as Ajay, and his wife, Neeraj Saini, to send people abroad for a fixed amount. The complainant further stated that Amrit told to him that Jasveer Singh had asked him to come to Assandh with the necessary documents and to pay Rs.50,000 in cash as a security deposit. Influenced by Amrit's words, the complainant along with Sukhvinder and

Amrit, went to Jasveer's office in Assandh with ₹50,000 in cash and handed over the money and all original documents to Sukhvinder, who then gave them to Jasveer Singh. About one and a half months later, Sukhvinder informed the complainant that Jasveer Singh had called, and the process for sending him abroad had begun, and he had demanded Rs.6 lakh. Following Sukhvinder's instructions, they both went to HDFC Bank, Safidon, on 10.04.2023, and transferred ₹6 lakh through RTGS via cheque No.000004 to Jasbir Singh's account No. 922020056793832 at Axis Bank, Assandh. A few days later, Rohtash, along with Neeraj Saini, Sukhvinder, and Jasvir, went to meet Sulkhan Singh, also known as Ajay, Cand his wife namely Neeraj Saini.

They then left for Chandigarh but met, Jaspreet from Chandigarh, at Ambala, where Ajay and others gave some amount to Jaspreet and they also took ₹10,000 from the complainant. The complainant further made the accusation that to date, he has not been sent abroad, and when he asked them to return of the amount of ₹6,60,000/- the accused began harassing him and threatening him with dire consequences. (ii) That the case was initially investigated by ASI Suresh Kumar P.s. Sadar Safidon. On dated 12.06.2024 accused Sulkhan Mahiya alias Ajay, accused Neeraj Saini, accused Gurjinder Pal alias Jaspreet production warrants were obtained and on dated 13.06.2024 above named three accused were produced before the Ld. Trial Court at Safidon and joined into the investigation of the present case and they suffered their individual disclosure statement.

Accused namely Neeraj Sain was sent to judicial custody and confined in the Distt. Jail Kurkshetra on 13.06.2024 while two day remand for recovery of ₹6 Lakh 60 thousand was obtained from the Court for the accused namely accused Sulkhan Mahiya alias Ajay, accused Gurjinder Pal alias Jaspreet. On dated 14.06.2024 the place where the accused persons have obtained money from the complainant was got demarcated from the accused. And Accused Sulkhan Mahiya alias Ajay got recovered his share of amount from this resident at Garaunda which are taken into possession by way separate memo.

(iii) That on dated 15.06.2024 the accused Gurjinder Pal suffered his supplementary disclosure statement with regard to forged Fee Receipt of STCAIR University Canada, while the accused Sulkhan Mahsiya was sent to judicial custody whereas the accused Gurjinder Pal got demarcated the place at Canal where he had thrown his mobile in the Canal and also got recovered 50,000/- balance out of the total 5 lakh 60 thousand from his residence subsequently he is sent to the judicial custody and confined in the District Jail Kurukshetra. (iv) That accused namely Sukhvinder S/o Zile Singh i.e. Petitioner No. 1, Amritpal Singh S/o Gurbachan i.e. petitioner No. 2 and Jasbir S/o Gurbachan are yet to joined in the investigation of the present case." 4.

Petitioners' counsel prays for bail by imposing any stringent conditions and states that till the conclusion of the trial, the petitioners shall keep only one mobile number, which is mentioned in AADHAR card, if any, and within fifteen days undertakes to disconnect all other mobile numbers. The petitioners' counsel contends that custodial interrogation and pre-trial incarceration would cause an irreversible injustice to the petitioners and families 5.

State's counsel opposes the bail.

6.

Given the penal provisions imposed and the sentence provided by the Legislature, the nature of allegations coupled with the fact that the petitioners are a first offenders,

and one of the relevant factors would be to provide an opportunity to course correct. Even a prima facie perusal of paragraph Nos.5 and 7 of the bail petition needs consideration for bail.

7.

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), 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, 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), 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 grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

8.

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. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, Supreme Court holds that while exercising power Under Section 438 of the Code, the Court is duty-bound to strike a balance between the individual's right to personal freedom and the right of investigation of the police. While exercising utmost restraint, the Court can impose conditions countenancing its object as permissible under the law to ensure an uninterrupted and unhampered investigation. 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 and Anr. 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 petitioners are not required in any other case, they shall be released on bail in the FIR captioned above, in the following terms: (a). Petitioners to furnish personal bond of Rs. Ten thousand (INR 10,000/) each; AND (b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-) each, to the satisfaction of the concerned Investigator, before whom the bonds are required to be furnished. When the bonds are to be furnished before a Judicial Magistrate, then in case of the non-availability of the concerned Judicial Magistrate, to any other 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). Petitioners to hand over to the concerned investigator a fixed deposit for Rs. Ten thousand only (INR 10,000/-) each, 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 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 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 petitioners 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 petitioners shall mention the following personal identification details:

1.

AADHAR number 2.

Passport number, (If available), when the attesting officer/court thinks appropriate or considers the accused as a flight risk.

3.

Mobile number (If available) 4.

E-Mail id (If available) 12.

The petitioners are directed to join the investigation within seven days and also as

and when called by the Investigator. The petitioners shall be in deemed custody for Section 27 of the Indian Evidence Act. The petitioners 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, it will be open for the prosecution to seek cancellation of the bail. Whenever the investigation occurs within the police premises, the petitioners 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 petitioners 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.

14.

Petitioners 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. 15.

The petitioners are directed not to keep more than one prepaid SIM each, i.e., one pre-paid 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 petitioners must comply with this condition within fifteen days of release from today. 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.

Since, as on date, in India, there are only four prominent mobile service providers, namely BSNL, Airtel, Vodafone-Idea, and Reliance Jio, any other telecom service provider are directed to comply with the directions of the concerned Superintendent of Police/Commissioner of Police, issued in this regard and disable all prepaid mobile phone numbers issued in the name of the petitioner, except the main number/default number linked with AADHAR, by taking such information from the 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.

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."

16.

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. 17.

The conditions mentioned above imposed by this Court are to endeavour that the accused does not repeat the offence and to give 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 Three-Judge 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."

18.

All terms of this bail order shall be explained to the applicant in a language they can comprehend by the applicant's advocate and the officer in whose presence the applicant signs personal bonds.

19. If the petitioners find the bond amount beyond social and financial reach, it may be brought to the notice of this Court for appropriate reduction. Further, 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.

20. 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. 21.

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 maximum sentence which 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.

22. 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.

23. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior. 24.

The SHO of the concerned police station or the investigating officer shall arrange to send a copy of this order, preferably a soft copy, to the complainant and the victim, without any delay. If the victim(s) notice any violation of this order, they may inform the SHO of the concerned police station, the trial court, or even this court. 25.

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 July 02, 2024 AK Whether speaking/reasoned :

Yes Whether reportable :

No