Punjab-Haryana High Court
Ashok Kumar Mittal vs Central Bureau Of Investigation And ... on 11 May, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2023:PHHC:068717
CRM-M-14975-2023
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-14975-2023 (O&M)
Reserved on: 13.04.2023
Pronounced on: 11.05.2023
Ashok Kumar Mi al ...Pe oner
Versus
Central Bureau of Inves ga on and another ...Respondents
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Vikram Chaudhri, Senior Advocate with
Mr. Keshavam Chaudhri, Advocate, Mr. Parvez Chaudhary, Advocate,
Ms. Hargun Sandhu, Advocate and Mr. Sajal Bansal, Advocate,
for the pe oner.
Mr. Rajeev Anand, Advocate for the respondent-CBI.
Mr. Satya Pal Jain, Addi onal Solicitor General of India with
Mr. Lokesh Narang, Senior Panel Counsel,
for respondent-ED.
****
ANOOP CHITKARA, J.
FIR No. Dated Sec2ons
ECIR/CDZO-II/01/2019 05.09.2019 3 & 4 of Preven on of
Money Laundering Act,
2002
Arising out of
FIR No. Dated Police Sta2on Sec2ons
RCBD1/ 08.05.2018 CBI, BS & FC, 420, 467, 468, 471 read with
2018/E/0009 New Delhi Sec on 120- B IPC and Sec on 13
(2) r/w 13(1) (d) of PC Act
1. The pe oner incarcerated in the case cap oned above, on the viola ons of PMLA Act, has come up before this Court under Sec on 439 CrPC seeking bail.
2. In paragraph 9 of the bail pe on, the accused declares that he has no criminal antecedents.
3. Pe oner's counsel prays for bail by imposing any stringent condi ons. The pe oner contends that the pre-trial incarcera on would cause an irreversible injus ce to the pe oner and family.
4. The State opposes bail.
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5. The allega ons are that pe oner defrauded the bank to the tune of Rs.155.21 Crores. He signed the document of acceptance and payment of DP bills which reflects the unauthorised amended amount of LC. He also got forged /manipulated bills of entry submi ed to the OBC against LCs. On 13.04.20203 counsel for the pe oner voluntarily offer surrender passport etc.,it is appropriate to reproduce the order.
"Counsel for the pe oner on instruc ons submits that pe oner would voluntarily surrender passport, fire arms and hand over on separate notarized affidavits, to the counsel represen ng CBI and ED before this Court, the complete details of bank account numbers with addresses, fixed deposits, DEMAT account numbers, the current market value of jewelry, sovereign metals, all precious ar cles, held either individually or jointly, and cash-in-hand.
Arguments heard.
Judgment reserved".
6. As per paragraph 1 of the bail pe on, the pe oner is in custody since 23.05.2022. Given the pre-trial custody, coupled with the prima facie analysis of the nature of allega ons, and the other factors peculiar to this case, there would be no jus fiability for further pre-trial incarcera on at this stage, subject to the compliance of terms and condi ons men oned in this order. Furthermore, the pe oner 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 2.2 of the bail pe on needs considera on for bail.
7. In Sanjay Chandra v. Central Bureau of Inves ga on, (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 me, we cannot lose sight of the fact that the inves ga ng agency has already completed inves ga on 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 inves ga on. We are of the view that the appellants are en tled to the grant of bail pending trial on stringent condi ons in order to ally the apprehension expressed by CBI.
8. The possibility of the accused influencing the inves ga on, tampering with evidence, in mida ng witnesses, and the likelihood of fleeing jus ce, can be taken care of by imposing elabora ve and stringent condi ons. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Cons tu onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric ve condi ons.
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9. Without commen ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men oned above, the pe oner makes a case for bail, subject to the following terms and condi ons, which shall be over and above and irrespec ve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
10. In Mahidul Sheikh v. State of Haryana, CRM-33030-2021 in CRA-S-363-2020, decided on 14-01-2022, Para 53, [Law Finder Doc Id # 1933969], this Court observed, [53]. The pragma c approach is that while gran ng bail with sure es, the "Court" and the "Arres ng Officer" should give a choice to the accused to either furnish surety bonds or to handover a fixed deposit, or direct electronic money transfer where such facility is available, or crea ng a lien over his bank account. The accused should also have a further op on to switch between the modes. The op on lies with the accused to choose between the sure es and deposits and not with the Court or the arres ng officer.
11. Given above, provided the pe oner is not required in any other case, the pe oner shall be released on bail in the FIR cap oned above, in the following terms:
(a). Pe oner 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 sa sfac on of the concerned court, and in case of non-availability, any nearest Ilaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned court must sa sfy that if the accused fails to appear in court, then such surety can produce the accused before the court.
OR
(b) Pe oner to hand over to the concerned court a fixed deposit for Rs. Ten Thousand only (INR 10,000/-), with the clause of automa c renewal of the principal and the interest rever ng to the linked account, made in favor of the 'Chief Judicial Magistrate' of the concerned district. Said fixed deposit may be made from any of the banks where the stake of the State is more than 50% or any of the well-established and stable private sector banks. The fixed deposit need not necessarily be made from the pe oner's account.
(c). Such court shall have a lien over the deposit un l the case's closure or discharged by subs tu on, or up to the expiry of the period men oned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the en re amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.
(d). It shall be the total discre on of the pe oner to choose between surety bond and fixed deposit. It shall also be open for the pe oner to apply to the Inves gator or the concerned court to subs tute the fixed deposit with surety bonds and vice-versa.
(e). On the reverse page of personal bond, the pe oner shall men on her/his permanent address along with the phone number, preferably that number which is linked with the AADHAR, and e-mail (if any). In case of any change in the above par culars, the pe oner shall immediately and not later than 30 days from such modifica on, in mate about the change to the concerned police sta on and the concerned court.
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(f). The pe oner is to also execute a bond for a endance in the concerned court(s) as and when asked to do so. The presenta on of the personal bond shall be deemed acceptance of the declara ons made in the bail pe on and all other s pula ons, terms, and condi ons of sec on 438(2) of the Code of Criminal Procedure, 1973, and also of this bail order.
12. The pe oner 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.
13. Given the undertaking by counsel for the pe oner in the Court on 13.04.2023, pe oner is directed to comply with the following condi ons:
(i) To surrender passport;
(ii) Given the nature of allega ons and the other circumstances peculiar to
this case, the pe oner shall surrender all weapons, firearms, ammuni on, if any, along with the arms license to the concerned authority within ten days from today and inform the Inves gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe oner shall be en tled to renew and take it back in case of acqui al in this case and
(iii) The pe oner shall forward to the Inves gator/SHO and the complainant/vic m(s) the complete details of bank account numbers with addresses, fixed deposits, DEMAT account numbers, the current market value of jewelry, sovereign metals, all precious ar cles, held either individually or jointly, and cash-in-hand. If the pe oner fails to comply with these condi ons, then on this ground alone. In that case, the bail might be canceled, and the complainant may file any such applica on for the cancella on of bail, and State shall file the said applica on.
14. During the trial's pendency, if the pe oner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condi on as s pulated in this order, it shall always be permissible to the respondent to apply for cancella on of this bail. It shall further be open for any inves ga ng agency to bring it to the no ce of the Court seized of the subsequent applica on that the accused was earlier cau oned not to indulge in criminal ac vi es. Otherwise, the bail bonds shall remain in force throughout the trial and aWer that in Sec on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi ons.
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15. The condi ons men oned above imposed by this Court are to endeavour that the accused does not repeat the offence and to provide an opportunity to the vic m to consider legal remedies for recovery of the amount. In Mohammed Zubair v. State of NCT of Delhi, Writ Pe on (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 condi ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor onal to the purpose of imposing them. The courts while imposing bail condi ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi ons that would result in the depriva on of rights and liber es must be eschewed."
16. Any Advocate for the pe oner and the Officer in whose presence the pe oner puts signatures on personal bonds shall explain all condi ons of this bail order in any language that the pe oner understands.
17. If the pe oner finds bond amount beyond social and financial reach, it may be brought to the no ce of this Court for appropriate reduc on. Further, if the pe oner finds bail condi on(s) as viola ng fundamental, human, or other rights, or causing difficulty due to any situa on, then for modifica on of such term(s), the pe oner may file a reasoned applica on before this Court, and aWer 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 condi on.
18. This order does not, in any manner, limit or restrict the rights of the Police or the inves ga ng agency from further inves ga on as per law.
19. In case the Inves gator/Officer-In-Charge of the concerned Police Sta on arraigns another sec on of any penal offence in this FIR, and if the new sec on prescribes maximum sentence which is not greater than the sec ons men oned above, then this bail order shall be deemed to have also been passed for the newly added sec on(s). However, suppose the newly inserted sec ons prescribe a sentence exceeding the maximum sentence prescribed in the sec ons men oned above, then, in that case, the Inves gator/Officer-In-Charge shall give the pe oner no ce of a minimum of seven days providing an opportunity to avail the remedies available in law.
20. Any observa on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
21. In return for the protec on from incarcera on, the Court believes that the accused shall also reciprocate through desirable behavior.
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22. The SHO of the concerned police sta on or the inves ga ng officer shall arrange to send a copy of this order, preferably a soW copy, to the complainant and the vic m, without any delay. If the vic m(s) no ce any viola on of this order, they may inform the SHO of the concerned police sta on, the trial court, or even this court.
23. There would be no need for a cer fied copy of this order for furnishing bonds, and any Advocate for the Pe oner can download this order along with case status from the official web page of this Court and a est it to be a true copy. In case the a es ng officer wants to verify the authen city, such an officer can also verify its authen city and may download and use the downloaded copy for a es ng bonds.
Pe22on allowed in aforesaid terms. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
11.05.2023
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
Neutral Citation No:=2023:PHHC:068717
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