Punjab-Haryana High Court
Sunny Kumar vs State Of Punjab on 11 March, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:034370
CRM-M-10326-2024
2024:PHHC:034370
217 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-10326-2024
Date of Decision: 11.03.2024
Sunny Kumar ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Rahul Bhargava, Advocate
for the pe oner.
Mr. Kanav Bansal, D.A.G., Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta on Sec ons
1 10.02.2017 Vigilance Bureau, 409, 420, 467, 468, 471,
Economic Offences 120-B IPC (Sec on 13(1) (D)
Wing, District r/w 13(2) of PC Act, 1988 and
Ludhiana, Punjab 201 IPC added later on)
1. The pe oner incarcerated in the FIR cap oned above has come up before this
Court under Sec on 439 CrPC seeking bail.
2. In paragraph 29 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 and is also voluntarily agreeable to the condi on that ll the conclusion of the trial before the trial court, the pe oner shall keep only one mobile number, which is men oned in AADHAR card, and within fiEeen days of release from prison undertakes to disconnect all other mobile numbers. The pe oner contends that the further pre-trial incarcera on would cause an irreversible injus ce to the pe oner and family.
4. The State opposes bail.
5. Facts of the case are being extracted from affidavit filed by concerned DySP which reads as follows:-
"1. That it is per nent to men on here that the FIR No. 01 dated 10.02.2017, GO registered Under Sec on 409, 420, 467, 468, 471, 120-B IPC and Sec on 13 (1) (d), 13 (2) of the Preven on of Corrup on Act 1988, at Police Sta on Economic Offences Wing, 1 1 of 9 ::: Downloaded on - 13-03-2024 02:51:13 ::: Neutral Citation No:=2024:PHHC:034370 CRM-M-10326-2024 2024:PHHC:034370 Punjab, Vigilance Bureau Ludhiana was ini ally registered a:er Vigilance enquiry no. 09/2016 Jalandhar. Earlier 13 accused were nominated in this FIR and the role played by other 15 suspects was to be inves gated. Therea:er, during the course of inves ga on a SIT was cons tuted to inves gate the said ma?er by the then Chief Director Vigilance Bureau Punjab vide its office order dated 25.05.2018. The said SIT inves gated the ma?er and filed cancella on report before the Hon'ble Special Court of Dr. Ajit A?ri, Ludhiana on 13.06.2019.
2. That the Hon'ble Special Court of Dr. Ajit A?ri, Ludhiana had directed to further inves gate the said FIR vide its order dated 05.04.2022. That as per the direc on of this Hon'ble court the case was further inves gated especially in the light of following 13 points.
a) Whether any permission was sought from the Municipal Commi?ee, Hoshiarpur/ administra on prior to publica on of no fica on no.3-A for the development of the colonies or not and what is the exact me of the development of colony if any?
b) Whether the proper procedure for the change in the nature of the land has been followed before issuance of the varia on cer ficates and when the change in the nature of land was applied in each such case and when the necessary procedure was followed in each case of change of the nature of the land ? Whether owner of the land moved any wri?en applica on before the SDM with regard to change in nature of the land or not and whether these applica on were entered in the diary by assigning the numbers?
Apart from this, whether the nature of the land could be changed a:er publica on of the no fica on no.3-A, 3-D, 3G or not and if it was possible, then what procedure was to be Govt adopted for this purpose?. In how many cases the nature of the land is changed a:er the no fica on 3A, 3-D and 3G?
c) Whether the land in ques on has been sold or purchased a:er publica on of no fica on no.3-A and subsequent no fica ons in pursuance to some conspiracy by the accused? The number of the sale deeds executed and registered immediately before and a:er the issuance of the no fica on/s, the market rate of the area prior to those sale deeds and the market rate of the area a:er the issuance of the no fica ons?
d) In how many cases the applica ons for the change in the nature of the land were received, in how many cases such applica on were allowed and in how many cases the applica ons were not allowed? The en re process followed for the change of the nature of the land?
e) To what extent the amount of compensa on was increased on change of nature of the land on sale/purchase of land in ques on a:er the publica on of no fica on no.3-A?
f) On what basis, the amount of compensa on was calculated?
g) To how many persons the compensa on was disbursed and at what rate, who purchased land a:er the publica on of no fica on 2 2 of 9 ::: Downloaded on - 13-03-2024 02:51:14 ::: Neutral Citation No:=2024:PHHC:034370 CRM-M-10326-2024 2024:PHHC:034370 3-A?
h) What were the guidelines of the M.O.R.T.H regarding the aspect of sale/purchase of the land during the process of acquisi on?
i) What were the responsibili es of the CALA regarding the issue of sale/purchase of the land and whether CALA carried out his responsibili es as outlined in the M.O.R.T.H guidelines?
j) Whether the proper procedure was followed by CALA in determina on of the compensa on to be paid to the land owners?
k) Whether the change of the nature of land in ques on influenced the rates of compensa on, if yes, then how much loss was caused by this to the State?
l) Whether the CALA determined the rates of compensa on bases on nature of the land and market value as on the date of no fica on issued under sec on 3-A of the N.H. Act 1956 or not?
m) Whether the criteria followed for deciding the market value of the lands was based on the parameters provided by the law?
3. That, in order to comply with the direc ons of the Hon'ble court under order dated 05.04.2022, a Special Inves ga on Team (SIT) was cons tuted. Therea:er, during the course of further inves ga on by the said SIT, new facts have been discovered regarding the gravity of offence commi?ed by the accused in the said ma?er. A:er perusal of the case documents by the SIT, it has come to no ce that Dra: 3A schedule was prepared by the survey company Louis Berger group and same was sent to office of XEN PWD Hoshiarpur (Project Director). Therea:er the same dra: 3A Schedule was further sent to the office of co-accused Anand Sagar Sharma who-was the then SDM-cum-CALA Hoshiarpur by XEN PWD Hoshiarpur vide office le?er no. 903 dated 19-01-2015 for verifica on of khasras. It is per nent to men on here that the accused Anand sagar sharma the then SDM-cum-CALA Hoshiarpur inten onally and with mala fide kept the said Dra: 3A schedule pending in his office for about four months and fraudulently changed the khasra numbers of five villages namely Khwaspur/Piplanwala, Dagana Kalan, Dagana Khurd, Hardokhanpur and Bassijana in the 3A schedule. By doing this he illegally created a new road alignment falling in the above men oned five villages. That, in order to prove this illegal road alignment, the present SIT compared both the dra: 3A schedule prepared by Louis burger company and 3A schedule prepared by the accused and then SDM cum CALA Anand sagar sharma along with men oned khasra numbers in both and map showing the road alignments through concerned Revenue officials. (Copy of the comparison report and map a?ached herewith as annexure-1).
4. That a:er the crea on of new road alignment in the above men oned five villages the accused Anand Sagar Sharma the then SDM-cum-CALA Hoshiarpur involved his near and close persons namely Harpinder Singh etc. That accused Harpinder Singh started 3 3 of 9 ::: Downloaded on - 13-03-2024 02:51:14 ::: Neutral Citation No:=2024:PHHC:034370 CRM-M-10326-2024 2024:PHHC:034370 purchasing the agricultural land in villages Khawaspur and Hardokhanpur in is own name and in the name of his family members/rela ves/close associates. Therea:er, in coonivance and conspiracy with accused Anand sagar sharma, the accused Harpinder Singh and other accused men oned in this FIR received compensa on on colony/residen al rates, which is totally unfair and illegal in the eyes of law. It is worth while to men on here that the present SIT while during the course of inves ga on obtained reports from the concerned departments to verify and inves gate the facts as following:
(i) The SIT obtained report dated 04/10/2023 from the office of District town planner hoshiarpur and as per this report/record no CLU/Lay out/Site plan/NOC were issued by the then office. In fact there is no communica on between any of the accused who filed applica on under 3C and the Office of District town planner with regard to same. It is crystal clear from the report of DTP dated 04/10/2023 that there is no basic facility like street lights/drainage system/water supply etc. available even as on date as per the record. (Copy of the report dated 04/10/2023 is a?ached as annexure- 2).
(ii) That during the course of inves ga on the report from PSPCL was also obtained. While in the said report dated 10/10 / 2023 it is specifically men oned that none of the accused who filed applica on under 3C has applied for issuance/Installa on of the electricity meter nor the same has been issued by the department as per the office record. (The copy of said PSPCL report dated 10/10/2023 is a?ached as annexure-3)
(iii) That the current/latest report from the revenue department was also obtained by the SIT during the course of inves ga on and as per the said report dated 21/9 / 2023 there is no colony/residen al area in the said land described by the accused while filing applica on under 3C. Even the said area is surrounded by agricultural land with crops as well. (The copy of revenue report dated 21/9 / 2023 is a?ached as annexure-4).
5. That as per the law laid down in the Na onal Highway Act 1956 under sec on 3D(2) -
"On the publica on of the declara on under sub-sec on (1), the land shall vest absolutely in the Central Government free from all encumbrances." But the accused and the then SDM cum CALA Anand sagar sharma, in connivance and conspiracy with other accused and by abusing process of law kept transferring the ownership tles in the changed khasra numbers in 3A schedule by him even a:er no fica on under 3D/3G even when the names of actual owners of the land were already published in the no fica on under 3D/3G in order to give compensa on to other accused and conspirators in this ma?er. It is also per nent to men on here that during the course of inves ga on the actual owners of the land came forward and got recorded their statements that the accused have cheated and defrauded them and their compensa on amount has been grabbed by them, in connivance and conspiracy with each other.
6. Detail of sequen ally published no fica ons regarding the 4 4 of 9 ::: Downloaded on - 13-03-2024 02:51:14 ::: Neutral Citation No:=2024:PHHC:034370 CRM-M-10326-2024 2024:PHHC:034370 acquisi on of landunder Na onal Highway 70 (Now NH-3) (Jalandhar-Chintpurani) as following:
Sr.No. No fica ons Date of publica on in
newspaper
1. 3A 14.07.2015
2. 3D 10.11.2015&11.11.2015
3. 3G 01.12.2015
7. Specific role of the accused/pe oner Sunny Kumar (Numberdar) is described as following:
Name of Rajwantkaur and Surjeet Singh were men oned as seller of the land on the sale deed bearing 4451 dated 18/11 / 2015 which registered in the name of other co-accused namely Prateek Gupta. It is per nent to men on here that the said Surjeet Singh (seller) was not present at the me of registra on of above men oned sale deed. But in spite of this fact accused/pe oner stood as witness of Numberdarin the above said sale deed in connivance and conspiracy with other co-accused. (The copy of sale deed 4451 dated 18/11 / 2015 is a?ached as annexure-5).
8. That it is per nent to men on here that the present SIT, in addi on to the said FIR added sec on 201 IPC, nominated 42 other accused and mean NO while declared one accused as innocent vide DDR no. 06 dated 17.11.2023 and accused/pe oner is among these 42 accused."
6. As per paragraph 4 of the bail order of Special Judge, Ludhiana, the pe oner is in custody since 18.11.2023. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie 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.
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 5 5 of 9 ::: Downloaded on - 13-03-2024 02:51:14 ::: Neutral Citation No:=2024:PHHC:034370 CRM-M-10326-2024 2024:PHHC:034370 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 v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (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.
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 Madhu Tanwar v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M- 27097-2023, decided on 29-05-2023, this court observed, [10] The exponen al growth in technology and ar ficial intelligence has transformed iden fica on techniques remarkably. Voice, gait, and facial recogni on are incredibly sophis cated and pervasive. Impersona on, as we know it tradi onally, 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 jus ce, then in such cases, appropriate condi ons 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 revolu on has just begun, to keep pace with exponen al and unimaginable changes the technology has brought to human lives, it is only fiPng that the dependence of the accused on surety is minimized by giving alterna ve op ons. 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 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, to any nearest Ilaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned officer/court must sa sfy that if the accused fails to appear in court, then such surety can produce the accused before the court.
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(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, 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 pe oner to prepare an account payee demand draE favouring concerned Chief Judicial Magistrate for the similar amount.
(c). Such court shall have a lien over the funds 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). The pe oner is to also execute a bond for aUendance 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 of this bail order.
(e). While furnishing personal bond, the pe oner shall men on the following personal iden fica on details:
1. AADHAR number
2. Passport number, (If available), when the court aUes ng the bonds, thinks appropriate or considers the accused as a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
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.7
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13. Pe oner to comply with their undertaking made in the bail pe on, made before this court through counsel as reflected at the beginning of this order. If the pe oner fails to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the vic m/complainant may file any such applica on for the cancella on of bail, and the State shall file the said applica on.
14. The pe oner is directed not to keep more than one prepaid SIM, i.e., one pre- paid mobile phone number, ll the conclusion of the trial; however, this restric on is only on prepaid SIMs [mobile numbers] and not on post-paid connec ons or landline numbers. The pe oner must comply with this condi on within fiEeen days of release from prison. The concerned DySP shall also direct all the telecom service providers to deac vate all prepaid SIM cards and prepaid mobile numbers issued to the pe oner, except the one that is men oned as the primary number/ default number linked with the AADHAAR card and further that ll the no objec on from the concerned SHO, the mobile service providers shall not issue second pre-paid SIM/ mobile number in the pe oner'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 direc ons 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 pe oner, except the main number/default number linked with AADHAR, by taking such informa on from the pe oner's AADHAR details or any other source, for which they shall be legally en tled by this order. This condi on shall con nue ll the comple on of the trial or closure of the case, whichever is earlier. In Vernon v. The State of Maharashtra, 2023 INSC 655, [para 45], while gran ng bail under Unlawful Ac vi es (Preven on) Act, 2002, Supreme Court had directed imposi on of the similar condi on, which reads as follows, "(d) Both the appellants shall use only one Mobile Phone each, during the me they remain on bail and shall inform the Inves ga ng Officer of the NIA, their respec ve mobile numbers."
15. 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 aEer 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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16. The condi ons men oned above imposed by this Court are to endeavour that the accused tries to reform, does not repeat the offence and to provide a sense of security to the vic m. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], 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."
17. 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.
18. 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 aEer 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.
19. 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.
20. In return for the protec on from incarcera on, the Court believes that the accused shall also reciprocate through desirable behavior.
21. 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.
Pe&&on allowed in aforesaid terms. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
11.03.2024
Jyo Sharma
Whether speaking/reasoned: Yes
Whether reportable: No.
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