Himachal Pradesh High Court
William Prince Ikechuwu vs State Of H.P on 31 May, 2021
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 828 of 2021 Reserved on: 25th May, 2021.
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Date of Decision: 31st May, 2021.
William Prince Ikechuwu ...Petitioner.
Versus
State of H.P. ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 NO
For the petitioner : Mr. N.S. Chandel, Senior Advocate with Mr. Vinod
r Kumar Gupta, Advocate.
For the respondent : Mr. Nand Lal Thakur, Additional Advocate General.
THROUGH VIDEO CONFERENCE
FIR No. Dated Police Station Sections
163/2019 02.10.2019 Palampur, District Kangra 420, 120-B IPC
Anoop Chitkara, Judge.
A foreign national, a holder of Passport issued by Nigeria, who is incarcerating since November 7, 2020, in connection with the FIR mentioned above, has come up before this Court under Section 439 of CrPC, seeking bail.
2. A perusal of the petition reveals that the petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 &
15), wherein the Full bench holds that a person can directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.
3. The bail petition is silent about criminal history, however, Mr. Vinod Gupta, Learned Counsel for the bail petitioner states, on instructions, that the petitioner has 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 31/05/2021 20:12:53 :::HCHP 2no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed was more than three years. The status report also does not mention any criminal past of the accused.
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4. Briefly, the allegations against the petitioner are that on 2 nd October, 2019, a lady aged about 64 years informed SHO, Police Station, Palampur, about the online fraud of Rs.46,47,000/-. She stated that she made friendship through internet with Jamie Ibrahim, who gained her trust and confidence. After that she transacted an amount of Rs.39,47,000/- to different accounts. Subsequently, under the pretext of paying custom duty she was duped to the extent of Rs.7,00,000/-. In all the total fraud amounted to Rs. 46, 47,000/-. Based on these allegations, the Police registered the FIR mentioned above. During investigation, the police traced Roja Maliyana. During search of the house, the police recovered lot of electronic equipments, laptops, pan-drives, ATM Cards etc. Upon arrest Roja Maliyana, disclosed that all those transactions were done under the instructions of one person named William Prince Ikechuwu, petitioner herein. After that the police arrested William Prince Ikechuwu on 7th November, 2020.
5. Learned Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.
6. On the contrary, the contention on behalf of the State is that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.
7. 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, (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions. REASONING:
8. The purpose for which the complainant had transferred amount of Rs.39,47,000/- is not disclosed. Subsequent transfer of Rs.7,00,000/- for custom duty of the car is also not supported with the name and brand of the Car and from which country, it was being imported.
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 ::: Downloaded on - 31/05/2021 20:12:53 :::HCHP 3 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 custody since 7th November 2020. The maximum sentence prescribed in the offences mentioned in FIR would not justify further custody. An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose. Without commenting on the merits of the case, the stage of the investigation and the period of incarceration already undergone would make out a case for bail. In the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail.
11. In Shokhista v. State, 2005 Law Suit (Del) 1316, Delhi High Court observed,
5. ...The accused is a foreign national and is not able to furnish a local surety. The same does not debar her from being admitted to bail. The provision of local surety is nowhere mentioned in the Code of Criminal Procedure and surety can be from any part of the country or without. In the present case, since the accused is a foreign national and is facing investigation under Sections 4, 5 and 8 of the I. T. P. Act and in view of the fact that the Petitioner is ready and willing to make a deposit in cash in lieu of the surety in addition to a personal bond, I am of the opinion that the ends of justice would be met in permitting her to do so. Consequently, I admit the Petitioner to bail on her furnishing a personal bond in the sum of Rs. 20,000/- and a cash deposit of the like amount in lieu of the surety to the satisfaction of the Trial Court. The Petitioner shall not leave the country without prior permission of the trial court and shall deposit her pass-port with the trial court.
12. 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.
13. 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.
14. The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Ten thousand (INR 10,000/-), and shall furnish ::: Downloaded on - 31/05/2021 20:12:53 :::HCHP 4 two sureties of Rs. Twenty-five thousand only (INR 25,000/-), 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 the Court, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.
15. In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Ten thousand (INR 10,000/-), made in favour of Chief Judicial Magistrate, Kangra, District Kangra, 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, 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 ::: Downloaded on - 31/05/2021 20:12:53 :::HCHP 5 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.
16. 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, mention the permanent address of the petitioner along with the Passport number and other details, Visa to India and its other details, 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, within thirty days of his release from prison, procure a smartphone, and inform its IMEI number and other details to the SHO/I.O. of the Police station mentioned before. He shall keep the phone location/GPS always on the "ON" mode. Before replacing his mobile phone, he shall produce the existing phone to the SHO/I.O. of the police station and give details of the new phone. Whenever the Investigating officer asks him to share his location, then he shall immediately do so. The petitioner shall neither clear the location history nor format his phone without permission of the concerned SHO/I.O. He shall also not clear the WhatsApp chats and calls without producing the phone before the concerned SHO/I.O.
d) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the ::: Downloaded on - 31/05/2021 20:12:53 :::HCHP 6 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.
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e) 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.
f) 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.
17. The petitioner shall neither stare, stalk, make any gestures, remarks, call, contact, message the victim, either physically, or through phone call or any other social media, nor roam around the victim's home.
18. 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 ::: Downloaded on - 31/05/2021 20:12:53 :::HCHP 7 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 .
continue to remain in force throughout the trial and after that in terms of Section 437- A of the CrPC.
19. 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 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.
20. 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.
21. 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 Court shall also be competent to modify or delete any condition.
22. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.
23. In Stephen Chidubem v State of Himachal Pradesh, CrMP(M) No. 39 of 2020, this Court observed, [27]. Although the Court has granted bail in favour of accused, still neither the issue comes to an end, nor do the terms of justice. In the interest of equity and fair play, the matter needs further consideration. Given the following reasoning, this Court is requesting the Trial Court to expedite the trial.
[28]. Every visitor to our country comes for a specific purpose and for a limited time. However, if during the period of her stay, ::: Downloaded on - 31/05/2021 20:12:53 :::HCHP 8 they get arraigned as an accused in a criminal case, then she gets stuck up here. It may be traumatic to her, and to her education, family, friends, business, and n number of things, which an ordinary human being cannot even imagine. The answer lies in .
the speedy disposal of cases of foreign nationals, whether they are in custody or on bail.
[29]. Learned Additional Advocate General, submits that a few Foreign Nationals, while in India, deal in substance trade. [30]. The solution to this lies not in denying bail. It lies in verifying the antecedents of these types of suspects, before approving or granting Visa, and once accused in substance abuse, then revoking the Visa. Synergy of law with technology is the next big thing.
24. Given this, the Court requests the concerned Courts to expedite the trial.
25. 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.
26. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.
27. There would be no need for a certified copy of this order for furnishing bonds. Any Advocate for the petitioner can download this order along with the case status 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.
Copy Dasti.
(Anoop Chitkara), Judge.
May 31, 2021 (ps).
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