Delhi District Court
@ Kevin Esso @ Kev vs . Cbi on 23 January, 2021
IN THE COURT OF SH. SANJEEV AGGARWAL, SPECIAL
JUDGE (PC ACT) (CBI)02, ROUSE AVENUE DISTRICT
COURT, NEW DELHI
Crl. Rev. No. 02/2021
CNR No. DLCT110000132021
Emmanuel Amaechi Esonwanne
@ Kevin ESSO @ Kev Vs. CBI
23.01.2021
ORDER
1. Vide this order, I shall dispose off the present revision petition directed against the impugned order dated 19.11.2020 passed by Ld. CMM, Rouse Avenue District Courts, New Delhi in RC No. 221/2020/E0005/EOIII CBI, u/S. 468, 471 IPC and Sec. 12 of Passport Act and Sec. 14 of Foreigners Act. (The parties are hereinafter being referred to by their respective status before the Ld. Trial Court).
2. Brief facts relevant for the disposal of the present revision petition can be culled out from the order dated 23.09.2020 passed by Ld. Trial Court, which are reproduced as under :
"23.09.2020 Present: Sh. Jai Hind Patel, Ld. APP for CBI with IO.
Sub Inspector Sukhchain Goyal.
Shri Rahul D Tyagi, Ld. Counsel for accused Emmanuel Amachhi Esonwanne.
It is stated that the accused had entered Page No. 1 of 10 in the country on a valid VISA but the allegations are that the subsequent VISA is forged.
Counsel for accused submits that it is quite possible that accused has been misled by some third party and he may not be aware that the VISA is forged. Ld. Counsel for the accused has relied upon the order passed by the Hon'ble High Court of Delhi in the matter bearing Bail Application 3181/2019 titled as Chozoba Clement v. State (NCT of Delhi), in which the accused was found without a valid VISA.
CBI has opposed the bail application on the ground that one of the passports recovered from the accused was also forged. However, it is conceded on the questioning that the said aspect is part of another FIR, which is not concerned to this case. This court is concerned about the allegations made in this case. Even otherwise, the accused is already on bail in other case. He has spent one month in JC in this case. As on date, the allegations are at the most of the case punishable upto 7 years.
Considering all the facts and circumstances, the accused is admitted to bail subject to furnishing a bail bond in the sum of Rs.50,000/ with two sureties of the like amount subject to the following conditions:
1. The accused shall appear in person before the court as and when required.
2. The accused shall appear before the IO at 10:00 AM on every alternate day unless exempted by the IO as per the discretion of the IO based on his official work.
3. The accused shall provide his mobile telephone number to the IO which he undertakes to keep operational at all times and in the event of change of his residential address/mobile telephone number, shall inform the same to the IO concerned.
4. The accused shall deposit his passport with the court after the same is Page No. 2 of 10 renewed.
5. The accused shall, take steps to get his visa extended and shall fulfill the formalities as per requirement of FRRO, Delhi.
6. The accused shall not leave the NCR/country without permission of this court.
7. The accused will not directly or indirectly make any inducement, threat or promises to the complainant or any witness during the trial or tamper with the evidence.
8. The accused will remain regularly present before the court.
The bail application is disposed off accordingly.
Bail bonds not furnished.
Copy of the order be given dasti and be also sent to accused through Jail Superintendent concerned."
The impugned order dated 19.11.2020 is also reproduced as under :
"19.11.2020 Present : Sh. Jai Hind Patel, ld. APP for CBI.
Sh. Rahul D. Tyagi, counsel for accused / applicant.
This is an application under Section 445 of Cr.PC filed on behalf of accused / applicant.
Arguments heard. Record has been perused.
The accused was granted bail vide order dated 23.09.2020.
Considering the nature and gravity of the offence, I do not find any reason to modify the bail order.
I have also perused the case law as filed by Ld. Defence counsel. I have highest Page No. 3 of 10 regard for the authorities as placed on record but they do apply to facts and circumstances of the case.
In these circumstances, application stands dismissed."
3. It is the said order, the petitioner has challenged by way of present revision petition on the following main grounds :
That the impugned order dated 19.11.2020 passed by Ld. Trial Court is bad in law and has been passed without application of mind. It is submitted that the revisionist had already admitted on bail on 21.07.2020 in another matter i.e. RC No. 221/2019/E0008 u/S. 43 r/w. Sec. 66, 66C, 84C and 66D of IT Act 2000. It is stated that when the Ld. Trial Court had already granted the benefit to the revisionist for execution of personal bond in terms of the order dated 21.07.2020 so there is no justification for declining the prayer of the revisionist mentioned in the application u/S. 445 CrPC for the necessary modification of the order dated 23.09.2020 passed by the Ld. Trial Court up to the extent to waive off the condition for producing the two sureties and to allow the petitioner / applicant / accused to deposit the cash amount in lieu of the surety bond, without any legal justification.
It is further submitted that the revisionist is an foreign national and is not in position to furnish the surety bonds and the revisionist cannot be deprive of his life and liberty, as he has already been granted bail by imposing onerous conditions, as the revisionist is ready and willing to make deposit in cash in lieu of the sureties in addition to the personal bond.
It is further submitted that the Ld. Trial Court has further failed to appreciate that the impugned order 19.11.2020 is contrary Page No. 4 of 10 to the number of judgments passed by the Hon'ble High Court of Delhi, whereby the foreign Nationals have been allowed to deposit the cash in lieu of surety amount, as per the provision of Section 445 of CrPC.
It is further submitted that the revisionist is ready to comply with rest of the conditions mentioned in order dated 23.09.2020 except to the modification prayed by way of present revision petition i.e. to waive off the condition of two sureties and to allow the petitioner to deposit the cash amount in lieu of the surety bond.
Therefore, it is prayed that necessary modification in order dated 23.09.2020 passed by the Ld. Trial Court, whereby the application u/S. 445 of CrPC has been dismissed be set aside and the said order be modified to the extent to waive off the condition of producing two sureties and to allow the petitioner to deposit cash amount in lieu of the surety bond on behalf of the revisionist.
Ld. Counsel for the petitioner / revisionist has relied upon the judgment(s) cited as Shokhista Vs. State 2005[3] JCC 1612, Anthony Vs. State Crl.M.C. 2911/2010 decided on 06.10.2010 and Zoro Daniel Vs. State Crl.M.C. 443/2012 decided on 22.02.2012 in support of his contentions.
4. On the other hand, reply has been filed by the CBI to the grounds of present revision petition, the relevant extract of which is reproduced as under :
"8. That despite living in India since many years the Page No. 5 of 10 accused hasn't provided even one surety so far and failed to fulfill the bail condition as set by the Ld. CMM.
9. That the accused has no social background in India and has no roots in the society. Modifying the condition of bail as set by the Ld. Court of CMM and granting the accused bail without surety may result in accused evading the process of law.
10. That the accused being a foreign national has no permanent place of residence. There is no way of make sure at which place the accused will reside if released on bail after modifying the bail conditions.
11. That since the accused has no permanent address in India, it will be not possible to execute any warrant. Further, India has no extradition treaty with Nigeria and in the event of the accused failing to comply with the bail conditions, it will not be possible to extradite him to face the trial."
Therefore, it is stated that the petition moved by the petitioner / accused for modification in bail order dated 23.09.2020 may be dismissed.
5. I have gone through the rival contentions.
6. In the judgment cited as K. Bhuvaneswari Vs. The Inspector of Police, XXI Team, CCB, EDFIII, Commissioner of Office, Vepery, Chennai (Crime No. 126 of 2017) in Crl.O.P. No. Page No. 6 of 10 21308 of 2017, decided on 23.10.2017, it has been held by the Hon'ble Madras High Court as under :
17.While granting bail, the Court can direct the accused to execute bail bond. As per Section 440 Cr.P.C. the bond amount should not be excessive. When a person so directed to execute the bond either with surety or without surety is not able to furnish the sureties, then under Section 445 Cr.P.C. he has the option to offer cash security. But even then, it must be a reasonable amount. It should not be an arbitrary, excessive amount. It should not be in the nature of deprivation of grant of bail by fixing an heavy amount as surety amount. If heavy amount is directed to be deposited as cash security, the bailee/accused will not be in a position to comply it. If heavy amount is demanded from the Surety, then the bailor will not be forthcoming. And 'haves' will go out while 'have nots' will remain in jail.
18.Reading Sections 440, 441 and 445 Cr.P.C.
together, it is clear that straightaway a Court cannot direct the accused to deposit cash security. First of all, the Court has to direct execution of bail bond by the sureties in case if the release is not on his own bond. Only in lieu of that deposit of cash security could be directed (see Section 445 Cr.P.C.).
19.As already stated even if the cash security is ordered under Section 445 Cr.P.C. the Court must pay regard to the circumstances of the case and the amount should not be excessive (see Section 440 Cr.P.C. Also see State of Mysore vs. H.Venkatarama Kotaiyah (1968 Crl.L.J. 696) Moti Ram and Others vs. State of Madhya Pradesh [(1978) 4 SCC 47] Babu Singh and Others vs. The State of U.P. (AIR 1978 SC Page No. 7 of 10
527) Gokul Das vs. The State of Assam (1981 Crl.L.J. 229) Afsar Khan vs. State of Karnataka (1992 Crl.L.J. 1676) Bhikhabhai Udesinh Darbar vs. State of Gujarat [(1998) 1 GLR 315] Parades Patra and Another vs. State of Orissa (1993 II OLR 452) Sandeep Jain vs. National Capital Territory of Delhi [(2000) 2 SCC 66] Amarjit Singh vs. State of NCT of Delhi (JT 2002 (1) SC 291) Sheikh Ayub vs. State of Madhya Pradesh [(2004) 13 SCC 457] Ramathal and Others vs. Inspector of Police and Another [(2009) 12 SCC 721] Amaldoss and others vs. The Inspector of Police Patteeswaram Police Station Thanjavur District 2015 (2) MWN (Cr.) 387 (Crl.O.P.(MD) Nos.19196 and 19197 of 2014 dated 5.2.2015) and Sakthivel and Another vs. The Inspector of Police Belukurichi Police Station Namakkal District, 2015 (2) MWN (Cr.) 438 (Crl.O.P.Nos.835 and 836 of 2015 dated 4.2.2015).
7. The Ld. Counsel for the accused has also relied upon the Judgment of the Hon'ble High Court of Delhi titled as Anthony vs. State bearing Crl. M. C. NO. 2911/2010 dated 06.10.2010 wherein it has been held as under : "7. Having regard to the fact that the petitioner, who is a foreign national and does not have any relative or friend in this city, who can stand surety for him, the order dated 3.05.2010 passed by the learned Metropolitan Magistrate is modified to the extent that the petitioner is permitted to deposit cash to the tune of Rs.20,000/ in lieu of the surety bond with the trial court. Subject to furnishing the aforesaid surety amount alongwith a personal bond, the petitioner shall be released on bail, in terms of the order dated 03.05.2010 passed by the learned Metropolitan Magistrate."
Page No. 8 of 108. In view of the aforesaid judgments which are squarely applicable to the facts of the case, since the accused is also a foreign national, it would be difficult for him to arrange sureties. In fact, the accused was given an opportunity to produce the sureties which he could not, thereafter, he moved the present application to deposit the amount of bond in cash in lieu of sureties.
9. In these facts and circumstances, interest of justice shall be met, if the order of the Ld. ACMM dated 23.09.2020 is modified to the extent that the accused/petitioner is directed to deposit cash to the tune of Rs.50,000/ in lieu of the surety bonds with the trial court, subject to the furnishing aforesaid surety amount in cash, alongwith the personal bond of like amount, the accused/petitioner shall be released on bail.
10. However, the other detailed terms and conditions pertaining to the grant of bail mentioned at Srl. No. 1 to 8 in the said bail order dated 23.09.2020 shall remain the same. With these observations, the present revision petition stands allowed to the extent as mentioned above.
11. The net result of the above discussion is that, the impugned orders dated 23.09.2020 and 19.11.2020 are hereby set aside to the extent mentioned above. The present revision petition stand allowed.
12. Nothing observed herein above shall have any bearing on the merits of the case.
Page No. 9 of 1013. Copy of this order be sent to the Ld. Trial Court for immediate compliance, along with TCR, as also to the accused/petitioner for information.
14. Revision file be consigned to record room.
Announced in the open (Sanjeev Aggarwal) Court on this 23rd day of Special Judge (PC Act)(CBI)02 January, 2021. Rouse Avenue District Court New Delhi/23.01.2021 Page No. 10 of 10