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Jasmeet Kaur Bagga vs State (Nct Of Delhi) on 10 February, 2022

Author: Chandra Dhari Singh

Bench: Chandra Dhari Singh

                          $~21
                          *      IN THE HIGH COURT OF DELHI AT NEW DELHI
                          +      BAIL APPLN. 22/2022
                                 JASMEET KAUR BAGGA                                   ..... Petitioner
                                                     Through:     Mr. Mukesh Kumar and Mr. Krishna
                                                                  Kumar Singh, Advocates

                                                     versus

                                 STATE (NCT OF DELHI)                               ..... Respondent
                                               Through:           Ms. Kusum Dhalla, APP for State
                                                                  with SI Madan Lal, P.S. BHD Nagar.
                                                                  Mr. M.C. Premi, Mr. Akhilesh
                                                                  Kumar, Mr. Arun Premi and Ms.
                                                                  Renu     Thakur,     Advocates     for
                                                                  complainant.

                                 CORAM:
                                 HON'BLE MR. JUSTICE CHANDRA DHARI SINGH
                                         ORDER

% 10.02.2022 (THROUGH VIDEO CONFERENCING) CRL.M.A. 2756/2022 (Early hearing) By way of this application, the petitioner seeks early hearing of the captioned petition.

For the reasons stated in the application, early hearing is allowed. Accordingly, the application stands disposed of.

1. The instant application has been filed under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter "Cr.P.C.") seeking anticipatory Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 22/2022 Page 1 of 8 Signing Date:11.02.2022 17:27:34 bail in FIR bearing No. 1007/2020 registered at Police Station Baba Haridas Nagar for offences punishable under Section 420/34 of the Indian Penal Code, 1860 (hereinafter "IPC").

2. The petitioner/applicant, a certified investment advisor, is an accused in the aforementioned FIR. She is the Director of her Proprietorship firm, namely, Research Infotech Investment Advisor (hereinafter referred as "Proprietor Firm") with having its office at Indore, Madhya Pradesh. As per the prosecution, the Proprietor Firm is an Investment Advisor Firm that sends investment tips and suggestions to its clients via messages so as to enable its customers to make the investments themselves through their own DEMAT accounts. In July 2018, the Complainant had availed the „Jobbers Equity Combo‟ plan of the Proprietor Firm and had paid the applicable charges for the same. As per the FIR, the Complainant had made a series of alleged payments, between 27th July 2018 to 15th October 2018, in favour of the Proprietor Firm. These payments were made on instructions of the employees of the Firm. It is also stated that the Complainant had suffered losses and had discontinued the services of the Proprietor Firm during the first week of December 2019.

3. Learned counsel appearing on behalf of the applicant submitted that notice under Section 41A of the Cr.P.C. had been issued to the applicant and in pursuance to the said notice she appeared twice before the Investigating Officer. It is also submitted that she has furnished all documents to the concerned IO as required under Section 91 of the Cr.P.C.

4. Learned counsel appearing on behalf of the submitted that petitioner has filed the anticipatory bail bearing No.3962/2021 under Section 438 Cr.P.C. before the learned ASJ Special Electricity Court, Dwarka District Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 22/2022 Page 2 of 8 Signing Date:11.02.2022 17:27:34 Court, New Delhi in connection with the aforesaid FIR. The said bail application was rejected vide order dated 30th November 2021. Learned counsel submitted that the entire transaction between the applicant's firm and the complainant is purely commercial in nature and the petitioner has only taken her professional fees from the complainant on advice which has been given to him for investment of money. The investment was made by the complainant in the security market by his independent choice and decision and from his own DEMAT account based on the bona fide advice rendered by the Proprietor Firm in return of the professional fee received by it and as no such string of criminality can be attached to the same even assuming that the Complainant, as a matter of fact, suffered losses or failed to get the expected profit from such transactions. Learned counsel submitted that the petitioner is an innocent person and has not committed any offence or breach as alleged in the FIR. She has already appeared before the Investigating Officer in pursuance of the notice under Section 41A of the Cr.P.C. and handed over all documents pertaining to the case. On instructions, learned counsel submitted that, petitioner undertakes to abide by any condition imposed by this Court while granting bail and shall co- operate in the investigation and trial. Learned counsel for the petitioner vehemently submitted that the disputes, resulting into institution of the instant criminal proceedings, are purely and primarily of civil nature between the applicant and the complainant and the sole purpose of the instant criminal proceedings is to harass the petitioner. It is prayed on behalf of the petitioner that looking in the facts and circumstances as stated above, the petitioner may be directed to be released on anticipatory bail.

5. Per Contra, Ms. Kusum Dhalla, learned APP for the State has Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 22/2022 Page 3 of 8 Signing Date:11.02.2022 17:27:34 opposed the bail application and submitted that the petitioner is absconding since 2020. She is not co-operating with the Investigating Agency and due to this reason, the investigation has not been completed till date and chargesheet has not been filed. It is informed by Ms. Dhalla that the petitioner has not disclosed the address where she is residing. When the police authorities went to Indore on at the address given by the petitioner, her mother-in-law and sister-in-law were found there but petitioner was not present there. It is informed that the petitioner is running her business in several States and another FIR of similar nature is lodged against the petitioner at Haldwani. Learned APP has drawn attention of this Court to paragraphs 4 to 7 of the status report filed by the State. It is vehemently prayed that petitioner should not be granted anticipatory bail, as prayed, as she has cheated several persons in several cities and States and her custodial interrogation is required to find out exact number of people cheated by her. It is also submitted that the petitioner has not provided all receipts which were issued in favour of the complainant. Ms. Dhalla further submitted that since petitioner has not cooperated in the investigation, the Court concerned has already issued NBWs against the petitioner and in view of the above facts and circumstances and contentions made in the status report filed by the State, the petitioner is not entitled for any concession by this Court. It is prayed by learned APP that the petition is devoid of any merit and is liable to be dismissed.

6. Mr. M.C. Premi, learned counsel appearing on behalf of the complainant, also, opposed the bail application and submitted that the petitioner has committed fraud on the complainant and several other similarly situated investors and looking into the gravity of the offence, the Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 22/2022 Page 4 of 8 Signing Date:11.02.2022 17:27:34 petitioner is not entitled to grant of anticipatory bail.

7. Heard learned counsel for the parties and perused the record.

8. I have perused the FIR as well as the status report. It is an admitted fact that FIR was lodged in December 2020 and since then the investigation has not been completed due to non-cooperation of the petitioner. It is also admitted that NBWs have been issued by the Court concerned against the petitioner. The Investigating Agency is trying to find out how many persons have been cheated by the petitioner including the present complainant relying on observations made by SEBI, whereby the petitioner's company has been banned for four years due to some unauthorised transactions. The petitioner is running business in several Cities and States. I find force in the argument of learned APP that for the purpose of securing the details of investors as well as details of the State where the petitioner is running business, her custodial interrogation is required.

9. The Hon'ble Supreme Court has laid down its observations in factors to be considered while hearing an appeal in Lavesh vs. State (NCT of Delhi), (2012) 8 SCC 730, where the Hon'ble Supreme Court noted as under:

"8. Before considering the claim of the appellant, it is useful to refer Section 438 of the Code relating to grant of bail to a person who is apprehending arrest which reads as under:

438. (1)Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely--

i. the nature and gravity of the accusation;

ii. the antecedents of the applicant including the fact as to whether he 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; and. iv. where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail;

Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this Sub-Section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in- charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.

It makes it clear that in a non-bailable offence if a person has reason to believe that he may be arrested, he is free to apply to the High Court or the Court of Session praying that in the event of such arrest, he shall be released on bail. The belief that the applicant may be arrested must be founded on reasonable grounds. While considering such a request, the Court has to take into consideration the nature and the gravity of the accusation, antecedents, possibility of the applicant to flee from justice, etc. Further, normally, the Court should not exercise its discretion to grant anticipatory bail in disregard of the magnitude and seriousness of the matter.

...

12. From these materials and information, it is clear that the present appellant was not available for interrogation and investigation and was declared as "absconder". Normally, when the accused is "absconding" and declared as a "proclaimed offender", there is no question of Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 22/2022 Page 6 of 8 Signing Date:11.02.2022 17:27:34 granting anticipatory bail. We reiterate that when a person against whom a warrant had been issued and is absconding or concealing himself in order to avoid execution of arrant and declared as a proclaimed offender in terms of Section 82 of the Code he is not entitled to the relief of anticipatory bail."

10. In the matter of State of Madhya Pradesh vs. Pradeep Sharma, (2014) 2 SCC 171, while hearing an appeal against grant of Anticipatory Bail order by the High Court, the Hon'ble Supreme Court considered the question that whether the High Court was justified in granting Anticipatory Bail under Section 438 of the Cr.P.C. to the respondent/accused when the investigation was pending, particularly, when the accused had been absconding all along and not cooperating with the investigation. The Hon'ble Apex Court observed as under:

"14. ..... The above provision makes it clear that the power exercisable under Section 438 of the Code is somewhat extraordinary in character and it is to be exercised only in exceptional cases where it appears that the person may be falsely implicated or where there are reasonable grounds for holding that a person is accused of an offence is not likely to otherwise misuse his liberty.

...

17..... The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not cooperated with the investigation, he should not be granted anticipatory bail."

11. The observation has recently been reiterated by division bench of the Hon'ble Supreme Court in the matter of Prem Shankar Prasad vs. State of Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 22/2022 Page 7 of 8 Signing Date:11.02.2022 17:27:34 Bihar, 2021 SCC OnLine SC 955.

12. Looking into the seriousness of the nature of offence, arguments advanced by learned counsel for the parties and the observations of the Hon'ble Supreme Court, this Court is not inclined to grant anticipatory bail to the petitioner. The petition is accordingly dismissed.

13. CRL. M.A. 2755/2022, filed by the petitioner seeking interim relief, also, stands dismissed.

14. Date already fixed, i.e., 2nd March, 2022, stands cancelled.

15. Pending applications, if any, stand disposed of.

CHANDRA DHARI SINGH, J FEBRUARY 10, 2022 Aj/Ms Signature Not Verified Digitally Signed By:DAMINI YADAV BAIL APPLN. 22/2022 Page 8 of 8 Signing Date:11.02.2022 17:27:34