Delhi High Court - Orders
Ankur Saini vs State Through Government Of Nct Of Delhi on 15 April, 2024
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* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ BAIL APPLN. 903/2024
ANKUR SAINI ..... Petitioner
Through: Mr Mohit Mathur, Sr. Advocate with
Mr Nitesh Mehra, Mr Mayank
Sharma, Mr Sahaj Garg and Mr
Nipun Gupta, Advocates.
versus
STATE THROUGH GOVERNMENT OF
NCT OF DELHI ..... Respondent
Through: Mr Raghvinder Varma, APP for the
State with Insp. Dinesh Kumar, PS
Janakpuri.
CORAM:
HON'BLE MR. JUSTICE VIKAS MAHAJAN
ORDER
% 15.04.2024
1. The present bail application has been filed by the petitioner seeking anticipatory bail in FIR No.0079/2024 under Sections 419/420/120B IPC and Sections 66C and 66D of the Information Technology Act, 2000 registered at PS Janakpuri.
2. Learned APP for the State has handed over a status report today in the Court, the same is taken on record.
3. The case of the prosecution as borne out from the status report is that the accused persons namely, Sarvgya Tripathi, Dheeraj, Saurabh Sethi and Puneet Kumar were running a fake call centre at Assalatpur Village, Delhi area and involved in cyber cheating on the pretext of providing job by impersonating as employee of shine.com.
4. The modus operandi adopted by the accused persons was that they This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/04/2024 at 02:15:01 were procuring victims' details from official site of shine.com and they represented themselves as employees of shine.com to convince the victims that they will help them to get a job. The accused persons represented that the service charge for this service was only Rs.10.
5. Thereafter, the accused persons would guide the victims to their domain name viz., 'shinecomplaint.in' purporting the same to be the domain name associated with shine.com and asked them to fill in their details and to make the payment of Rs.10. The victim would fill in his general details in the form and when he would click the pay now option, the alleged domain automatically directs a customer to a page seeking the OTP and when the victim clicked on 'pay now' all payment credentials automatically would become visible at the backend of the alleged domain page to the accused persons.
6. The accused persons then would fill the payment credentials of the victim including mobile number, banking details etc. in the wallet of payment application Paytm/PhonePe etc., as well as, the desired/cheated amount say, Rs.5,000/- or Rs.10,000/- and then the OTP would go to the registered number of the victims who would think it is an OTP for Rs.10/- being the service charge. The customer would then enter the OTP and the same would become available at the backend of the domain of the accused persons, who would then proceed to transfer the desired/cheated amount in their own wallet.
7. The allegation against the petitioner is that he is the main operator of the illegal call centre and used to provide the bank accounts on which the cheated amount was transferred. It is also stated in the status report that during raid total 02 Laptops along with keypad mobile phones and 06 This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/04/2024 at 02:15:01 android mobile phones were recovered and all the above said gadgets were being used in the commission of offence.
8. Mr Mohit Mathur, learned senior counsel for the petitioner at the outset submits that the present petitioner has only been named by the co- accused while they were in custody of the police and thus, the said disclosure statement has no evidentiary value in the eyes of law and cannot be used a substantive piece of evidence against the present applicant.
9. The learned senior counsel further submits that the premises where the raid was conducted by the police i.e. 5th Floor, WZ-13D, Asslatpur village does not belong to the present petitioner nor was he present at the said premises when the raid was conducted.
10. He further submits that all the offences invoked are punishable with an imprisonment which may extend upto 07 years but no notice under Section 41A CrPC was given to the petitioner. In support of his contention, he relies upon the judgment of the Hon'ble Supreme Court in Satender Kumar Antil vs. CBI: (2022) 10 SCC 51. He submits that the petitioner is ready and willing to join the investigation and is also ready to abide by any condition which may be imposed by this Hon'ble Court. He, therefore, urges the court to grant anticipatory bail to the petitioner.
11. On the other hand, the learned APP for the State at the outset submits that the present bail application of the petitioner is not maintainable as warrant of arrest has been issued against the petitioner on 23.02.2024. In support of his submission he relies upon the judgment of the Hon'ble Supreme Court in Srikant Upadhyay vs. State of Bihar: 2024 SCC OnLine SC 282.
12. He submits that the petitioner is accused of grave and serious offence, This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/04/2024 at 02:15:02 inasmuch as he has committed a cyber fraud on PAN India basis and has cheated multiple innocent victims of their hard earned money. He submits that 02 FIRs vide crime No.109/2024 u/s 420 IPC and Section 66C IT Act, PS M3 Puzhal Crime Chennai, Tamil Nadu and FIR No.136/2024 u/s 66 (C&D) IT Act, PS Marathahlli, Bangaluru City, Karnataka, have also been registered. He further submits that co-accused Sarvagya Tripathi and petitioner Ankur Saini were also involved in similar type of offence previously and arrested in cyber fraud case in FIR No.13/2022 u/s 419/420/120B IPC PS Cyber Crime Central, Faridabad, Haryana.
13. Repelling the contention of the learned APP, it is submitted by Mr Mathur that the present FIR was registered on 16.02.2024 and NBWs were procured on 23.02.2024, without issuance of any notice under Section 41A CrPC. This approach according to Mr Mathur is in clear violation of mandate of Section 41A of the CrPC.
14. He further submits that the obtaining of NBWs by the prosecution cannot be a ground of non-consideration of present bail. The attention of the Court was drawn to the judgment of the Coordinate Bench of this Court Ashish vs. CBI: 2022 (2) JCC 1292.
15. Mr. Mathur further submits that no summons or notices have been received by the petitioner in cases stated to be registered at Chennai or Bengaluru.
16. I have heard the learned senior counsel for the petitioner, as well as, the learned APP for the State and have perused the material on record.
17. Since considerable arguments on the aspect of maintainability of the present petition have been advanced by both the sides, profitable would it be to reproduce the observations of the Hon'ble Supreme Court in Srikant This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/04/2024 at 02:15:02 Upadhyay (supra), which read as under:-
"25. We have already held that the power to grant anticipatory bail is an extraordinary power. Though in many cases it was held that bail is said to be a rule, it cannot, by any stretch of imagination, be said that anticipatory bail is the rule. It cannot be the rule and the question of its grant should be left to the cautious and judicious discretion by the Court depending on the facts and circumstances of each case. While called upon to exercise the said power, the Court concerned has to be very cautious as the grant of interim protection or protection to the accused in serious cases may lead to miscarriage of justice and may hamper the investigation to a great extent as it may sometimes lead to tampering or distraction of the evidence. We shall not be understood to have held that the Court shall not pass an interim protection pending consideration of such application as the Section is destined to safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases. At any rate, when warrant of arrest or proclamation is issued, the applicant is not entitled to invoke the extraordinary power. Certainly, this will not deprive the power of the Court to grant pre-arrest bail in extreme, exceptional cases in the interest of justice. But then, person(s) continuously, defying orders and keep absconding is not entitled to such grant."
(emphasis supplied)
18. A perusal of the above judgment manifests that merely because a warrant of arrest or proclamation under Section 82 CrPC is issued against the petitioner, the anticipatory bail application does not ipso facto become not maintainable. The power to grant pre-arrest bail in extreme, exceptional cases in the interest of justice continues to vest in the Court.
19. Prima facie there appears to be some substance in the contention of the learned senior counsel for the petitioner that seeking issuance of This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/04/2024 at 02:15:02 warrants of arrest within seven days of the registration of FIR without complying with the mandate of Section 41-A CrPC and the guidelines issued by the Supreme Court in Arnesh Kumar vs. State of Bihar: (2014) 8 SCC 2731 as reiterated in Satender Kumar Antil (supra) was unwarranted. The relevant directions from Arnesh Kumar (supra) in the context of cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, reads as under:-
"11.6. Notice of appearance in terms of Section 41-A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;
11.7. Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.
20. It is not in dispute that the offences invoked in the present case are punishable with an imprisonment which may extend to seven years. On a query posed by the court, the learned APP, on instructions from the IO who is present court, fairly states that no noticed under Section 41A CrPC was issued. Intriguingly, the FIR was registered on 16.02.2024 and NBWs were procured within seven days on 23.02.2024, that too without issuance of any notice under Section 41A CrPC. Needless to say, the provisions under Section 82 CrPC cannot be resorted to set at naught and frustrate the right available to an accused to protect his liberty under section 438 CrPC as has 1 Paras 7 to 12.
This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/04/2024 at 02:15:02 been done in the present case. Therefore, in the facts of the present case prima facie the remedy of anticipatory bail cannot be denied to the petitioner merely because NBWs have been procured against the petitioner.
21. It is also not in dispute that the petitioner has been named only in the disclosure statement of the co-accused persons. It is also not the case of the prosecution that the building from where other co-accused persons were arrested belongs to the petitioner. At this stage the only circumstance pressed against the petitioner is that he was in custody along with co- accused Sarvagya Tripathi in connection with FIR No.13/2022 u/s 419/420/120B IPC PS Cyber Crime Central, Faridabad, Haryana. The petitioner is, however, stated to be on regular bail in the said case. Further, the contention of the senior counsel for the petitioner is that the petitioner has neither received the summons nor notices in the FIRs stated to be registered at Chennai and Bengaluru.
22. Considering the aforesaid circumstances, it is directed that no coercive action be taken against the petitioner till the next date, subject to his joining investigation as and when directed by the IO concerned.
23. Let an updated status report be filed clearly spelling out the role of the petitioner in the present case, as well as, cases stated to be registered in Chennai and Bengaluru
24. Re-notify on 20.05.2024.
VIKAS MAHAJAN, J APRIL 15, 2024/MK This is a digitally signed order.
The authenticity of the order can be re-verified from Delhi High Court Order Portal by scanning the QR code shown above. The Order is downloaded from the DHC Server on 27/04/2024 at 02:15:02