Gauhati High Court
Kuljeet Singh vs The State Of Assam on 1 April, 2021
Author: Hitesh Kumar Sarma
Bench: Hitesh Kumar Sarma
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GAHC010178202020
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : AB/3568/2020
KULJEET SINGH
S/O SHRI HOSHIAR SINGH, R/O VILL-KAKKAR, FEROZPUR, P.S.-
FEROZPUR, PUNJAB-152023, PUNJAB, INDIA
VERSUS
THE STATE OF ASSAM
REPRESENTED BY THE PUBLIC PROSECUTOR, ASSAM
Advocate for the Petitioner : MS. K YASMEEN
Advocate for the Respondent : PP, ASSAM
BEFORE
HONOURABLE MR. JUSTICE HITESH KUMAR SARMA
ORDER
01-04-2021 This is an application under Section 438 Cr.P.C., praying for pre-arrest bail by the petitioner, namely, Kuljeet Singh, apprehending arrest in connection Dhemaji Police Station Case No. 425 of 2020, registered under Section 420 of the IPC, read with Section 66 of the I.T. Act, 2000.
2. Mr. R. Bharadwaj, learned counsel representing the petitioner and Ms. S. H. Bora, learned Additional Public Prosecutor representing the State respondent were heard on 25-03- 2021 and today the case has been fixed for necessary order. Accordingly, this order is passed disposing of the pre-arrest bail application.
3. None represents the petitioner today. However, Ms. S. H. Bora, learned Additional Public Prosecutor for the State respondent is present.
4. Perused the case diary.
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5. The contents of the FIR disclose the fact that on 27-09-2021 the complainant, Sri Rahul Amin Khan, lodged an FIR with Dhemaji Police Station to the effect that on 29-08- 2020, he had travelled to Dhemaji. On that day, he received an SMS from unknown bulk SMS "QP Mango C" on his mobile No. 8708784487 that, " the loan you applied for has been approved of Rs.1,50,000/- (Rupees one Lac Fifty Thousand only) within 24 hours, click for cash" and thereafter given a link. On clicking the given link, provided by the accused, prompting to download another link and found that it was intrusive in nature. The file, on downloading, gave access to all files of the mobile of the victim. The statement of the bank account of the accused person shows that his company named as " Transkai Technology Private Limited" has been credited with huge amounts within a short span of time. The entire money is suspected to be fraudulently obtained by committing breach of trust and cheating.
6. On receipt of the FIR, on the above facts, the Dhemaji Police Station Case No. 425 of 2020, under Section 420 of the IPC, read with Section 66 of the I.T. Act, 2000 was registered.
7. The learned counsel for the petitioner has submitted that some commission of fraud was alleged against the aforesaid company and that the petitioner has nothing to do with the SMS and mobile number from which it was sent.
8. During the course of investigation, the aforesaid company was found to have been formed by the frontman Mr. Xiao Kai, who is a Chinese national. Later on, it has come to light that one Mohammad Rafi and Binay Gurung were appointed as Directors of the company and Kuljeet Singh's (petitioner's) personal phone number had been used for disbursing loans by practicing fraud. Subsequently, Mohammad Rafi and Binay Gurung were arrested. Their statements before police reflect the complicity of the petitioner in the alleged crime to a great extent. Moreover, the case diary reveals that the petitioner was in good terms with the Chinese person, named above, who started the alleged company, designed an intrusive and offensive Android App and sent bulk messages by using petitioner's personal phone to random victims in the garb of granting easy loan.
9. After correspondence with Jalandhar Cyber Cell by the Superintendent of Police, Dhemaji, the said Cyber Cell shared the input that the alleged bulk SMS was released by the aforesaid company. They also shared the phone No. 8708784487, of the alleged company which was registered in the name of one Kuljeet Singh from Punjab.
10. The learned counsel for the petitioner has submitted that the petitioner has been co-
Page No.# 3/6 operating with the investigation of the case, since notice under Section 41(A) of the Cr.P.C. was served upon him. The petitioner has also categorically made a statement to that effect in paragraph 3 of the petition. On perusal of Section 41(A) of the Cr.P.C. notice, referred to by the learned counsel for the petitioner, it is found that the same is in connection with Jalandhar Cyber Crime Cell Case No. 2472 CC/JR, dated 17-09-2020. However, the instant application for pre-arrest bail is in connection with Dhemaji Police Station Case No. 425 of 2020. The contents of the aforesaid notice under Section 41(A) of the Cr.P.C. also shows that the said notice was in connection with a complaint received by the aforesaid Jalandhar Cyber Crime Cell. Such fact clearly reveals that the submission made by the learned counsel for the petitioner that the petitioner had co-operated with the investigation of the instant case appears to have no leg to stand.
11. The learned counsel for the petitioner has referred to the decision of the Hon'ble Supreme Court in the case of Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, reported in (2011) 1 SCC 694, to press his argument that the accused-petitioner has already joined the investigation, therefore, his arrest and custodial interrogation is not necessary. However, in view of the observation made in the foregoing paragraphs, the decision in Siddharam Satlingappa Mhetre (supra) is not applicable in the instant case.
12. The case diary reveals that the aforesaid alleged company was formed by one Chinese national, indicated above, in connivance with some persons from India with motive to cheat and thereby to fraudulently collect a huge amount of money from innocent people. Moreover, personal details of victims have fallen in the hands of foreign national, who may misuse it in any manner whatsoever. The case diary also reveals that there is reasonable ground to believe that the motive of the entire operation could be for mass level cross border espionage and even blackmailing of high priority individuals, apart from financial scam.
13. The learned counsel for the petitioner has submitted that in the instant case, the offence alleged against the petitioner is, inter alia, under Section 420 of the IPC and in an offence under Section 420 of the IPC, maximum punishment prescribed is imprisonment for either description for a term, which may extend to seven years and shall also be liable to fine. In this context, the learned counsel for the petitioner has referred to the decision of the Hon'ble Supreme Court in the case of Arenesh Kumar vs. State of Bihar and another, reported in (2014) 8 SCC 273, particularly paragraph 7.1, 7.2 and 7.3 thereof, which are Page No.# 4/6 reproduced hereinbelow:
"7.1. From a plain reading of the aforesaid provision, it is evident that a person accused of offence punishable with imprisonment for a term which may be less than seven years or which may extend to seven years with or without fine, cannot be arrested by the police officer only on its satisfaction that such person had committed the offence punishable as aforesaid. Police officer before arrest, in such cases has to be further satisfied that such arrest is necessary to prevent such person from committing any further offence; or for proper investigation of the case; or to prevent the accused from causing the evidence of the offence to disappear; or tampering with such evidence in any manner; or to prevent such person from making any inducement, threat or promise to a witness so as to dissuade him from disclosing such facts to the Court or the police officer; or unless such accused person is arrested, his presence in the court whenever required cannot be ensured. These are the conclusions, which one may reach based on facts.
7.2. The law mandates the police officer to state the facts and record the reasons in writing which led him to come to a conclusion covered by any of the provisions aforesaid, while making such arrest. Law further requires the police officers to record the reasons in writing for not making the arrest.
7.3. In pith and core, the police officer before arrest must put a question to himself, why arrest? Is it really required? What purpose it will serve? What object it will achieve? It is only after these questions are addressed and one or the other conditions as enumerated above is satisfied, the power of arrest needs to be exercised. In fine, before arrest first the police officers should have reason to believe on the basis of information and material that the accused has committed the offence. Apart from this, the police officer has to be satisfied further that the arrest is necessary for one or the more purposes envisaged by sub-clauses (a) to (e) of clause (1) of Section 41 of Cr.PC."
14. As the petitioner has not been arrested yet and he only apprehends arrest, it cannot be said beforehand that police, without complying with the guidelines given in the Arenesh Kumar (supra) shall arrest the petitioner.
15. On the other hand, it appears from the materials on record that the alleged offence in the instant case has been committed in an organized manner and the network of the offenders spreads even to a foreign country. A chain of persons are involved in the offence alleged. Therefore, to unearth the entire facts leading to the alleged offences, which, in fact, Page No.# 5/6 constitute some economic offence in nature, requires an in-depth and detailed investigation. The manner in which the alleged offences are alleged to have been committed, there is likelyhood of tempering with the evidence or causing disappearance of the evidence by the accused-petitioner. Therefore, the decision of the Hon'ble Supreme Court in Arenesh Kumar (supra), on facts, does not appear to be applicable in the instant case.
16. That apart, referring to Siddharam Satlingappa Mhetre (supra), the learned counsel for the petitioner has further submitted that Section 438(1) of the Cr.P.C. be interpreted in the light of Article 21 of the Constitution of India and that an order under Section 438 of the Cr.P.C. would not affect the right of police to conduct investigation.
17. The learned counsel for the petitioner prays that in the event, the accused-petitioner is arrested, as he apprehends, it would amount to curtailing his liberty in violation of article 21 of the Constitution of India. However, in the same decision, the Hon'ble Supreme Court has laid down certain guidelines, which are reproduced below:
"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:
i. The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
ii. The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence;
iii. The possibility of the applicant to flee from justice; iv. The possibility of the accused's likelihood to repeat similar or the other offences. v. Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her.
vi. Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people.
vii. The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
ix. The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
Page No.# 6/6 x. Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
18. In the instant case, considering the magnitude of the offences allegedly committed by the accused-petitioner and others including a national of a foreign country is likely to affect a large number of people and the gravity of the offences, as indicated above, is such that a meticulously careful and thorough investigation is inevitable. It is also noticed that in the instant case the mobile phone seized in connection with this case, wherefrom the bulk SMS were percolated, belonged to the present petitioner.
19. The learned counsel for the petitioner has also referred to the decision of the Hon'ble Supreme Court in the case of Ravindra Saxena vs. State of Rajasthan, reported in 2010 (1)JCC 371 and has submitted that anticipatory bail cannot be denied merely because the allegation in the case pertain to cheating or forgery of valuable security. It has further been submitted by the learned counsel for the petitioner, referring to the said decision, that the merit of the issues aforesaid shall be assessed at the time of trial of the accused persons and denial of the anticipatory bail on the ground that challan as has been presented, would be improper. This decision is not applicable in the instant case in the given facts. In the present case, challan has not been laid yet, is an undisputed position.
20. We have already found the nature as well as magnitude of the offence impacting large number of people requiring detailed and in-depth investigation on that count also, the decision in Ravindra Saxena (supra) is not applicable.
21. In view of the discussions above and considering the nature of the offences, its magnitude and also the fact that the same has been allegedly committed in an organized manner, this Court is not inclined to grant the privilege of pre-arrest bail to the petitioner. Accordingly, the prayer for pre-arrest bail made by the petitioner is rejected.
22. The petition stands disposed of accordingly.
23. Return the case diary.
JUDGE Comparing Assistant