Himachal Pradesh High Court
Vishal Kumar Pal vs State Of H.P on 4 February, 2021
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 98 of 2021 .
Reserved on: Jan 21, 2021.
Date of Decision: Feb 4, 2021.
Vishal Kumar Pal ...Petitioner.
Versus
State of H.P. ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1NO
For the petitioner: Mr. Rajiv Jiwan, Senior Advocate with Mr. Ajit Sharma,
Advocate.
For the respondent: Mr. Vikas Rathour & Narender Guleria, Addl. Advocate Generals with Mr. Bhupinder Thakur & Divya Sood, Deputy Advocate Generals and Mr. Rajat Chauhan, Law Officer.
THROUGH VIDEO CONFERENCE
FIR No. Dated Police Station Sections
238/2019 23.8.2019 Balh, Distt. Mandi 419, 420, 120B, IPC
and 66C, 66-D, IT
Act
Anoop Chitkara, Judge.
For involvement in an online bank fraud, the accused, who is in custody w.e.f.
24.2.2020, has come up before this Court under Section 439 of CrPC, seeking bail, on the grounds that the he is in custody for a considerable time.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 04/02/2021 20:15:42 :::HCHP 22. Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 15.10.2020 learned Sessions .
Judge, Mandi HP, dismissed the petition because of the amount involved. After that, the petitioner filed a bail petition before this Court, which was registered as Cr.MP(M) No.2113 of 2020. Vide order dated 16.12.2020, the same was dismissed as withdrawn.
3. Para 11 of the bail petition and status report mentions the following criminal history:
a) FIR No. not mentioned under Section 420, IPC at Police Station, Purulia, West Bengal.
b) FIR 9/2019 dated 25.10.2019 u/s 467, 468, 471, 420, IPC and 66C, 66D, IT Act, Police Station Asansol, West Bengal
4. Briefly, the allegations against the petitioner are that a complainant gave a written information to the police alleging therein about online net banking fraud. The allegations are that the complainant has two bank accounts in Punjab National Bank.
From both these accounts, a sum of Rs.25,74,435/- has been withdrawn in his absence. The complainant has gone to the bank to withdraw a sum of Rs.10,000/-, however, he received a message that the amount had been withdrawn from his account. He inquired from the bank officials about it and he was told that the ATM machine sometimes mal-functions. He filed the complaint and after some days, he received a phone call from one Rahul Sharma, who stated that he is speaking from Head Office of Punjab National Bank. He asked him to disclose 16 digits pin number. He stated that it is required to register his complaint. After that, he did not receive any message. On 22.8.2019 when he enquired from the bank, he came to know that there is no money in his account. When the complainant visited the bank, ::: Downloaded on - 04/02/2021 20:15:42 :::HCHP 3 the bank officials have asked him to register FIR. Based on this information, the police started inquiry.
.
5. It came in the investigation that the petitioner had received a phone call from mobile No.7469980751. Investigation further revealed that an amount of Rs.25,74,435/- has been withdrawn from both the accounts of the complainant. The investigation further revealed that the mobile No.7469980751 was traced in West Bengal. The police got trails of transactions linked to PNB, Indian Post Payment Bank, IRCTC-Mudra, Citrus Pay etc. and all that led to deposit of the money in a private sector bank. Investigation further revealed involvement of another mobile No.8597590806. It further revealed the involvement of the bail petitioner in this online bank fraud. Based upon the investigation, the police arrested the accused and he is in judicial custody since 24.2.2020.
6. Mr. Rajiv Jiwan, learned senior Advocate, assisted by Mr. Ajit Sharma, Advocate for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family. He further states that they have placed on record Adhar Card, identity card issued by Election Commission of India and his account number details of HDFC Bank as identify documents of the petitioner and it shall be impossible for the petitioner to abscond or not to attend trial.
7. On the contrary, Mr. Vikas Rathour, learned Additional Advocate General contends that the accused is a proven habitual offender, and given his past conduct;
he is likely to repeat the offence. He further insists that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.
8. In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 30 & 31), this Court after considering the relevant judicial precedents observed that in reckoning ::: Downloaded on - 04/02/2021 20:15:42 :::HCHP 4 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. 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. 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. 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.
9. In the present case, the maximum sentence imposable for the offences mentioned in FIR attracts the application of the directions passed in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, (Para 13), wherein Hon'ble Supreme Court directed all the State Governments to instruct its police officers not to arrest automatically when the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
10. The petitioner is in judicial custody for the last 11 months and he is aged 34 years. Section 420, IPC prescribes maximum imprisonment for a term of seven years. The petitioner has placed on record his adhar card, voter ID and account details of HDFC Bank, details whereof have been given as under:
Adhar Number 478342113105
Identity Card number issued by
Election Commision of india
::: Downloaded on - 04/02/2021 20:15:42 :::HCHP
5
FXP2446656
A/c
.
No.25071000002636,
HDFC Bank Ltd.
Gopal Complex, Ranchi Road
Purulia-723101, West Bengal
11. Given the above reasoning, the Court is granting bail to the petitioner, subject to strict 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 Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another.
13. The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Twenty-five thousand (INR 25,000/-), and shall furnish two sureties of a similar amount, to the satisfaction of the Judicial Magistrate having the jurisdiction over the Police Station conducting the investigation, and in case of non-availability, any Ilaqa Magistrate.Before accepting the sureties, the concerned Magistrate must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before theCourt, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.
::: Downloaded on - 04/02/2021 20:15:42 :::HCHP 614. In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Twenty-five thousand only (INR 25,000/-), made in favour of .
"Chief Judicial Magistrate, District Mandi H.P.,"
a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., Bank of America, Chase, HSBC, City Bank, HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account.
b) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.
c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.
d) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get the online liquidation disabled.
e) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR number.
f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.
g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa.
h) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged by substitution as the case may be.
15. The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:
a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.
b) The attesting officer shall, on the reverse page of personal bonds, ::: Downloaded on - 04/02/2021 20:15:42 :::HCHP 7 mention the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall immediately and not later than 30 days from such modification, intimate about .
the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.
c) 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 of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
d) 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 may be 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 petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.
e) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any). [Hon'ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020]:
i. At the first instance, the Court shall issue the summons.
ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.
iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.
16. In case of non-appearance, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest) that the Government(s) might incur to produce him ::: Downloaded on - 04/02/2021 20:15:43 :::HCHP 8 before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of .
Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse shall entitle the trial Court to order the transfer of money from the petitioner's bank account(s). However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner alone, and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and that voyage was not for any other purpose/function what so ever.
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, the State may move an appropriate application before this Court, seeking cancellation of this bail. Otherwise, the bail bonds shall continue to remain in force throughout the trial and after that in terms of Section 437-A of the CrPC.
18. 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 vernacular and if not feasible, in Hindi.
19. In case the petitioner finds the 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 ::: Downloaded on - 04/02/2021 20:15:43 :::HCHP 9 Court shall also be competent to modify or delete any condition.
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20. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.
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 no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.
The petition stands allowed in the terms mentioned above.
Anoop Chitkara, Vacation Judge.
February 4, 2021 (mamta) ::: Downloaded on - 04/02/2021 20:15:43 :::HCHP