Punjab-Haryana High Court
Dr. Pankaj Kumar vs State Of Haryana on 12 September, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2023:PHHC:120278
CRM-M-39098-2023 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-39098-2023 (O&M)
Reserved on: 06.09.2023
Pronounced on: 12.09.2023
Dr. Pankaj Kumar
... Petitioner(s)
Versus
State of Haryana
...Respondent (s)
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present:- Mr. P.S. Hundal, Senior Advocate with
Mr. Amit Kumar Jain, Advocate,
for the petitioner(s).
Mr. Manish Bansal, Sr. DAG, Haryana.
***
ANOOP CHITKARA, J.
FIR No. Dated Police Station Sections
19 10.07.2023 Anti Corruption 7, 7A, 13(1)(B) read with Section 13(2)
Bureau, District of the Prevention of Corruption Act,
Faridabad 1988 and Sections 34 and 120-B IPC.
(Sections 13(1(b) and 13(2) of the
Prevention of Corruption Act and 34 IPC
have been deleted later on)
1. The petitioner apprehending arrest in the FIR captioned above, has come up before this Court under Section 438 CrPC seeking anticipatory bail.
2. In paragraph 8 of the bail petition, the accused declares that he has no criminal antecedents.
3. Counsel for the petitioner has argued that the petitioner was not part of the raiding party which had visited the hospital of the complainant. The raiding party consisted of Dr. Akshay Jain and Dr. Shiv Kumar and thus, the role of the petitioner was is altogether different, which needs investigation. He further submitted that it was only during the conversation between the complainant and co-accused Raj Kumar, the name of the petitioner has surfaced, but for that, custodial investigation of the petitioner is 1 of 9 ::: Downloaded on - 17-09-2023 12:06:00 ::: Neutral Citation No:=2023:PHHC:120278 CRM-M-39098-2023 2 not required. Petitioner's counsel prays for bail by imposing any stringent conditions and states that they would have no objection to the conditions, i.e., declaration of assets by the petitioner and their spouse, and are also voluntarily agreeable to the condition that till the conclusion of the trial, the petitioner 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 petitioner contends that custodial interrogation and pre-trial incarceration would cause an irreversible injustice to the petitioner and family.
4. State's counsel strenuously opposes the bail and submits that recovery of bribe money is yet to be effected, which may require custodial investigation of the petitioner.
REASONING:
5. The complainant, who was running a clinic, informed the police that Dr. Raj Kumar, who had an oral share in the said clinic with the complainant, had cheated him in conspiracy with other co-accused Dr. Akshay Jain and Dr. Pankaj. As per the complainant, the aforesaid two doctors i.e. Dr. Akshay Jain and Dr. Shiv Kumar, who claimed to be doctors at Government Hospital, came to him and told him that the hospital of the complainant was not as per the criteria of the Government norms. On this, the complainant told them that qualified doctors sit in the hospital and there is no lapse in it. On the same day, co-accused Raj Kumar, who was his oral partner, told him that he was no more a partner in the said hospital and asked the complainant to take care of the hospital at his own level. Subsequently, Raj Kumar told the complainant that the doctors of Government hospital are demanding Rs.2 lac for settlement. Subsequently, Raj Kumar made a phone call to the complainant and told that he had given Rs.50,000/- to Dr. Pankaj Khandelwal and the balance amount is to be given by him. The complainant stated to the police that he had arranged Rs.38,000/- but he did not want to give bribe. After that, the police laid a trap and arrested one of the co- accused Dr. Shiv Kumar with the trap money. As per the police, the investigation revealed that the petitioner appears to have a share in the alleged bribe amount which was to be exhorted from the complainant and as per statement of co-accused, he already received Rs.50,000/- from accused Dr. Raj Kumar.
6. In the reply, State has annexed supporting document, showing conversation between co-accused Raj Kumar and the complainant. It is during this conversation, name of the petitioner has surfaced, which need to be investigated. After analyzing the facts and circumstances of the case, this Court is of the opinion that custodial 2 of 9 ::: Downloaded on - 17-09-2023 12:06:01 ::: Neutral Citation No:=2023:PHHC:120278 CRM-M-39098-2023 3 investigation would serve no purpose, because the petitioner has no criminal antecedents, and one of the relevant factors would be to provide an opportunity to course correct. Even a prima facie perusal of paragraph 3 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 3 of 9 ::: Downloaded on - 17-09-2023 12:06:01 ::: Neutral Citation No:=2023:PHHC:120278 CRM-M-39098-2023 4 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 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 investigator, and in case of non-
availability, to any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned officer must satisfy that if the 4 of 9 ::: Downloaded on - 17-09-2023 12:06:01 ::: Neutral Citation No:=2023:PHHC:120278 CRM-M-39098-2023 5 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 investigator 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 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 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 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 petitioner is directed to join the investigation within seven days and also as
5 of 9 ::: Downloaded on - 17-09-2023 12:06:01 ::: Neutral Citation No:=2023:PHHC:120278 CRM-M-39098-2023 6 and when called by the Investigator. The petitioner shall be in deemed custody for Section 27 of the Indian Evidence Act. 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 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, let off before 6 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.
13. 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.
14. 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 or in earlier orders. 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 petitioner is directed not to keep more than one prepaid SIM, 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 petitioner 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 6 of 9 ::: Downloaded on - 17-09-2023 12:06:01 ::: Neutral Citation No:=2023:PHHC:120278 CRM-M-39098-2023 7 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."
16. Within fifteen days from today, the petitioner shall forward to the Investigator/SHO and the complainant/victim(s) the following complete details, held either individually or jointly, on a notorised affidavit. If the petitioner fails to comply with this condition, then on this ground alone the bail might be canceled, and the complainant may file any such application for the cancellation of bail, and the State shall file the said application. The petitioner to declare their all assets in the following formats in Rupees (INR):
Total value of all net worth as on 31 Mar 2023 Current total value of all net worth Cash in hand as on date (Indian Rupee) Cash in hand as on date (All other currencies) Details of all bank accounts Current amount in cash, savings, checking, deposit accounts and crypto currency Total Value of equity shares & mutual funds as on 31 Mar 2023 Current total Value of equity shares & mutual funds Total Value of recurring deposit, fixed deposits, bonds, pension plans, & annuity insurance policies as on 31 Mar 2023 Current total Value of recurring deposit, fixed deposits, bonds, pension plans, & annuity insurance policies Current total market value of all jewellery, sovereign metals, artefacts, antiques etc. Current total market value of property including buildings, land etc. its area and location Total income in FY 2022-23 including farms, agriculture, horticulture, wages, salaries, commissions, interests, royalties, rent, income, or gifts received from other family members Enter the details of vehicles owned or in possession 7 of 9 ::: Downloaded on - 17-09-2023 12:06:01 ::: Neutral Citation No:=2023:PHHC:120278 CRM-M-39098-2023 8 Any other asset or income Total liabilities as on 31 March 2023 (Including loans) Current total liabilities (Including loans) Approximate expenditure during FY 2022-23 Any other expenses
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 does not repeat the offence and to provide an opportunity to the victim to consider legal remedies for recovery of the amount. 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."
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 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.
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21. 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.
22. 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.
23. 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.
24. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.
25. 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.
26. 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
September 12, 2023
AK
Whether speaking/reasoned : Yes
Whether reportable : No
Neutral Citation No:=2023:PHHC:120278
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