While espousing fully, finally and firmly the right of personal liberty even of accused, the Delhi High Court has most commendably in a learned, laudable, landmark and latest judgment titled Sunder Singh Bhati vs The State in 2022 LiveLaw (Del) 147 and Bail Appln 3750/2021 and Bail Appln 3921/ delivered on 17 January 2022 has been unequivocal in asserting that mere vague belief that the accused may thwart the investigation cannot be a ground to prolong the incarceration of the accused. The Court granted bail to two men in connection with an FIR registered offences under Section 406, 420, 409 and 120B of the Indian Penal Code. Both the men were in custody for over a year.
To start with, this extremely commendable, cogent, composed, courageous and convincing judgment authored by a single Judge Bench of Justice Subramonium Prasad of Delhi High Court first and foremost puts forth in para 1 that, “The Petitioners seek regular bail in FIR No. 89/2019 dated 01.06.2019 registered at Police Station Economic Offences Wing for offences under Sections 406/420/409/120B of the Indian Penal Code, 1860 (hereinafter, “IPC”).”
To put things in perspective, the Bench then while dwelling on the facts envisages in para 2 that, “The facts, in brief, leading up to these petitions are as follows:a. A complaint was filed by ex-serviceman, Sh. Dharmender Singh, stating that SMP IMPEX Pvt. Ltd. (Hello Taxi) (hereinafter, “the Company”), and its Directors/Officials, Dr. Saroj Mahapatra, Mr. Rajesh Mahto, Ms. Daisy Vijay Menon, Mr. Sunder Singh Bhati and other unknown persons had committed cheating and fraud.
b. It is stated that the Complainant had received a message and an email from the Company stating that if he invested his money, they would give him a 200% return within 1 year. The Directors, Dr. Saroj Mahapatra and Rajesh Mahto called the Complainant and invited him to Netaji Subhash Place where they told him about the Company and explained their plans to expand it on the lines of Uber/Ola. They told the Complainant that the Company was registered with RBI and SEBI. They further made the Complainant meet one Mrs. Daisy Vijay Menon who showed the Complainant the plan of the Company.
c. It is stated that after much insistence, the Complainant invested Rs. 9,00,000/-. Further, the Complainant’s friends, namely Rajesh Kumar, Rajender Singh, Yogender Singh, Umed Singh, Ajay, Sunil also invested Rs. 15 to 20 lakhs. It is stated that on the 10th of every month, installment would be sent to the account of the investors, however, after the first two months, no installment was made. On speaking with Harish Bhati and Rajesh Mahto, the Complainant was informed that he would get the third installment by 15th of the month, i.e. 15th March, however, the third installment was still not made. On calling the Company, Saroj Mahapatra showed the Complainant a clip from social media showcasing that the Company’s accounts had been frozen.
d. It is stated that the Complainant’s money has not been returned till date and that the accused do not pick up the calls of the Complainant. Stating that the Complainant and many others have been defrauded of their money, the complaint was filed on the basis of which the instant FIR was registered.
e. The Petitioner in BAIL APPLN. 3750/2021 filed an anticipatory bail application before the Ld. Trial Court which was dismissed vide Order dated 03.08.2019. The Petitioner in BAIL APPLN. 3750/2021 was declared absconder/proclaimed offender on 17.02.2020 and was arrested on 09.12.2020. Anticipatory bail application before this Court was dismissed as infructuous vide Order dated 16.08.2021. Bail application under Section 439 Cr.P.C. of Petitioner in BAIL APPLN. 3750/2021 was dismissed by the Sessions Court vide Order dated 23.09.2021.
f. An anticipatory bail application was filed by the Petitioner in BAIL APPLN. 3921/2021 which was dismissed by the Ld. Trial Court vide Order dated 19.09.2019. The Petitioner in BAIL APPLN. 3921/2021 was declared absconder/proclaimed offender on 17.02.2020 and was arrested on 22.08.2020. Bail applications before the Ld. CMM and the Ld. ASJ, Rohini were dismissed vide Orders dated 11.09.2020 and 24.09.2020, respectively. After filing of chargesheet, yet again bail application before the Ld. CMM was dismissed vide Order dated 10.05.2021.”
Be it noted, the Bench then clearly states in para 15 that, “The chargesheet as well as the supplementary chargesheet has been filed. With regard to Petitioner in BAIL APPLN. 3750/2021, the chargesheet and the supplementary chargesheet have been filed under Sections 406/409/420/120-B/174-A IPC and reveal that the Petitioner has been associated with the accused Company since the very beginning and that he actively participated in inducement of the public. It states that the Petitioner and the other accused were dishonest from the inception and that at the time of the booking, the Hello Taxi scheme had not been sanctioned and requisite permissions had not been obtained. It states that family members of the Petitioner were found to be benefitted from the funds transferred from the accused Company. It states that notices were issued to the family members, and they resorted to the defence that they invested in the scheme and the money transferred was merely a profit. However, it was noted that the Petitioner received the cheated money through the bank accounts of his family members. It is further revealed that notices under Section 41A Cr.P.C. were issued to the Petitioner, but he never joined the investigation, and when efforts were made to arrest him, he was found absconding. It states that the Petitioner was also declared PO. It states that many investors had named the Petitioner in their complaints, and that ingredients of Section 420 IPC were made out against the Petitioner.”Of course, the Bench then hastens to add in simple, suave and straight language in para 16 that, “With regard to Petitioner in BAIL APPLN. 3921/2021, the chargesheet and supplementary chargesheet have been filed under Sections 406/409/471/420/120-B/174-A IPC and reveal that the amount collected from the investors is expected to be more than Rs. 240 crores and the Petitioner was the Managing Director of the accused Company. It states that the Petitioner never joined the investigation despite several notices under Section 41A Cr.P.C. being issued to him. He was also found to be absconding when efforts were made to arrest him. Accordingly, an NBW was obtained against the Petitioner and he was declared an Absconder vide Court order dated 17.02.2020. It further reveals that the Petitioner was in conspiracy with the other Directors and that he was the authorized signatory of the bank accounts of the accused Company. Further, during the investigation, it was found that the Petitioner had two PAN cards. The chargesheet states that the accused persons, including the Petitioner, made false promises and received payments of crores of rupees from a large number of people with no intention of returning the money or fulfilling the promises. It states that by way of fraudulent misrepresentation, concealment of material facts and false assurances, the general public was induced to invest in the accused Company and part with their hard-earned money . It states that ingredients of Section 420/409/120-B IPC are easily made out against the Petitioner.”
What’s more, the Bench then waxes eloquent to hold in para 17 that, “A perusal of the chargesheet, therefore, indicates that both the Petitioners were involved in the multi-person scam involving more than Rs. 200 crores from the inception of the same and that both were instrumental in misleading the public into investing in the scheme with no intention of returning the money. There are more than 900 complaints till date which have been made pertaining to the scam and the investigation has revealed that the Petitioners played an integral role, right from inducing the public to the siphoning off of the cheated money. Further, multiple other FIRs are also pending against both the Petitioners. The gravity of the offences is such that if the Petitioners are subsequently convicted, they will be liable to be sentenced to undergo imprisonment for life.”Furthermore, the Bench then mentions in para 18 that, “However, gravity of the offence cannot be the sole ground to deny bail to the Petitioners. In Sanjay Chandra v. CBI, (2012) 1 SCC 40, the Supreme Court had observed as under:
“21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
- From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
- Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
- In the instant case, we have already noticed that the “pointing finger of accusation” against the appellants is “the seriousness of the charge”. The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor : the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather “recalibrating the scales of justice”.
- The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.
***** - 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 jeopardise 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.” (emphasis supplied).”
Most remarkably, the Bench then laudably holds in para 19 that, “Therefore, the magnitude of the offence cannot be the only criterion for denial of bail. The object of bail is to secure the presence of the accused at the time of trial; this object is, thus, neither punitive nor preventative, and a person who has not been convicted should only be kept in custody if there are reasons to believe that they might flee from justice or tamper with the evidence or threaten the witnesses. If there is no apprehension of interference in administration of justice in a criminal trial by an accused, then the Court should be circumspect while considering depriving the accused of their personal liberty. Mere vague belief that the accused may thwart the investigation cannot be a ground to prolong the incarceration of the accused.” It is worth noting that the Bench then envisages in para 20 that, “Most importantly, while the Petitioner in BAIL APPLN. 3750/2021 was arrested on 09.12.2020, the Petitioner in BAIL APPLN. 3921/2021 was arrested on 22.08.2020. Both the Petitioners have been in custody for over a year now. Chargesheet as well as supplementary chargesheet have been filed, and all the evidence available is documentary in nature and in custody of the investigating agency. Whether or not the cheated money was entrusted to the Petitioners is a matter of trial and cannot be taken into consideration at this juncture. This Court is, therefore, of the opinion that continued custody of the Petitioners is no longer required and that both the Petitioners should be enlarged on bail.” As a corollary, the Bench then holds in para 21 that, “In light of the above observations, this Court is inclined to grant bail to Petitioner in BAIL APPLN. 3750/2021 and Petitioner in BAIL APPLN. 3921/2021, subject to the following conditions:</code></pre></li>
a) Each petitioner shall furnish a personal bond in the sum of Rs.1,50,000/- with two sureties of the like amount, one of them should be a relative of the petitioner, to the satisfaction of the Trial Court;
b) The Memo of Parties shows that the petitioner in BAIL APPLN.3750/2021 is a resident of E-3, Road No.06 Gazipur Dairy Farms, Gazipur, Delhi-110092 and the petitioner in BAIL APPLN.3921/2021 is a resident of Flat No.125, Rose Apartment, Sector-18B, Dwarka, New Delhi. The petitioners are directed to reside at their respective address till further orders;
c) The petitioners are directed to report to the concerned Police Stations thrice in a week i.e. on every Monday, Wednesday and Friday at 10:30 AM and they shall be released by 11:00 AM after completing all the formalities;
d) The petitioners are directed to give all their mobile numbers to the Investigating Officer and keep them operational at all times;
e) The petitioners shall not, directly or indirectly, tamper with evidence or try to influence the witnesses in any manner;
f) In case it is established that the petitioners have tried to influence the witnesses or tamper with the evidence, the bail granted to the petitioners shall stand cancelled forthwith.”
For the purpose of clarity, the Bench then deems it fit to hold aptly in para 22 that, “It is made clear that the observations made in this Order are only for the purpose of grant of bail and cannot be taken into consideration during the trial.”
Finally, the Bench then concludes by holding in para 23 that, “Accordingly, both the bail applications are disposed of, along with pending application(s), if any.”
In essence, the key takeaway that can be derived from this learned judgment by the single Judge Bench of Justice Subramonium Prasad of the Delhi High Court is that mere vague belief that the accused may thwart investigation cannot be a ground to prolong the incarceration. No doubt, there have to be cogent and compelling reasons for denying bail to the accused. We all are now fully familiar with what Justice VR Krishna Iyer so famously propounded in 1980s in the case State of Rajasthan vs. Balchand alias Baliya (AIR 1977 SC 2447) that, “Bail is the rule and jail is the exception.” This is what we see so very rightly being vindicated in this notable case also. Sanjeev Sirohi