Punjab-Haryana High Court
Shilagha vs State Of Haryana on 27 February, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:027056
CRM-M-47107-2023
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-47107-2023
Reserved on: 20.02.2024
Pronounced on: 27.02.2024
Shilagha ...Pe oner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. R.S. Rai, Senior Advocate with
Ms. Rubina Virmani, Advocate for the pe oner.
Mr. Naveen Kumar Sheoran, D.A.G., Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta/on Sec/ons 254 12.08.2023 Panchkula, Sector-5, 409, 420 IPC and 13 of District Panchkula Preven on of Corrup on Act, 1988 1. The pe oner, who is a woman, aged 45 years, posted as Transport Sub
Inspector apprehending arrest in the FIR cap oned above for not deposi ng the challan fee of Rs.33,40,330/- during the period from 07.04.2023 ll 11.08.2023 in connivance with co-accused, had come up before this Court seeking an cipatory bail.
2. In paragraph 17 of the bail applica on, the accused declares the following criminal antecedents:
Sr. No. FIR No. Dated Offences Police Sta/on
1. 279 25.08.2023 406, 409, 420, 467, 468, Sector-5, Panchkula
471, 120-B IPC
3. Vide order dated 19.09.2023, this Court had granted interim bail, subject to a declara on of assets, and the said order is con nuing to date. On 11.10.2023, counsel for the pe oner submi<ed that the pe oner had voluntarily complied with the order dated 19.09.2023 and declared all their assets.
4. The facts of the case are being taken from paragraphs No.2 to 13 of the reply dated 04.01.2024 filed by the concerned Assistant Commissioner of Police, which reads as follows:
"2. The brief facts of present case are that FIR was registered on the basis of complaint moved by IFS, DTO Assistant Secretary, RTO, Panchkula. In the complaint complainant levelled allega%ons against Rakesh Rana, TSI Unique Code No.3A1690m, Parveen T. 1 1 of 7 ::: Downloaded on - 28-02-2024 06:48:30 ::: Neutral Citation No:=2024:PHHC:027056 CRM-M-47107-2023 Unique Code No.3D16JL and Shilaga TSI Unique Code No.6 FOLIL qua commi1ng embezzlement of govt. money in sum of Rs.62,02,530/- by way of not deposi%ng the amount collected by way of challaning the vehicles in between January to July, 2023. In the complaint, the descrip%on of vehicle challaned and amount recovered etc. found duly men%oned. In view of aforemen%oned complaint, the present case registered against the above- men%oned accused persons for commi1ng offence as punishable under Sec%on 409 and 420 IPC.
3. That the present pe%%oner was posted in RTO Office, Panchkula from 07.04.2023 %ll 11.08.2023 at the post of the cashier. During this %me the pe%%oner in connivance with other co-accused per- sons namely, Tarsem Lal (peon) and Tarun @ Jolly (driver) has mis- appropriated as sum of Rs.32,73,330/- from the government trea- sury. They have not deposited the said amount in the government treasury which was collected by way of challaning the vehicles in between January to July, 2023.
4. That during the inves%ga%on, a no%ce u/s 91 Cr.P.C. was sent to the concerned department and the en%re record concerning the present case was taken into police possession. The statements of witnesses were also recorded.
5. That on dated 21.08.2023, sec%ons 406 and 120-B IPC, were added in the present case.
6. That on dated 22.08.2023, the named accused in the present case namely Parveen Sharma son of Late Sh. Kali Ram resident of village Dhandardu, PO Khatoli, PS Chandimandir, Tehsil and Dis- trict Panchkula, presently residing at Flat no. G306, AWHO, Vikram Vihar Society, Sector-27, Panchklula and Rakesh Rana son of Sh. Sa%sh Rana resident of village Sitomajra, PO Nanakpur, PS Pinjore, Tehsil Kakla, District Panchkula, presently residing at Flat no.246B, Omax, New Chandigarh, PS Mullanpur, District Mohali, Punjab, were joined in the inves%ga%on and they were arrested as per the rules.
7. That on 23.08.2023, both the accused namely Parveen Sharma and Rakesh Rana were taken out of the lockup and thorough en- quiry was conducted qua them. As per the documents available on the file and aHer the enquiry conducted qua the said accused per- sons, it was found that in the RTA Department, Panchkula, the cash/fine collected by the challaning officer/employee from the offending vehicles is deposited to the cashier in the departmental office.
8. That the concerned employees/accused persons have not de- posited the said amount under the challan head of the RTA de- partment in SBI Bank, Sector-10, Panchkula. They have also not recorded the said amount in the records of RTA Panchkula. By con- niving with each other, they have misappropriated an amount of Rs.62,02,530/-. Subsequently, sec%on 13 of PC Act was also added in the present case.
9. That on dated 23.08.2023, by the office order bearing sr. no.84805-09 dated 23.08.2023, given by the Deputy Commissioner of Police, Panchkula, an SIT was cons%tuted which was headed by Sh. Surender Singh HPS, ACP Headquarter, Panchkula.
10. That both the above accused were presented before the Ld. JMIC, Panchkula and a two days police remand was sought in or- der to recover the misappropriated amount as per their disclosure statement as well as to arrest the other accused persons who 2 2 of 7 ::: Downloaded on - 28-02-2024 06:48:31 ::: Neutral Citation No:=2024:PHHC:027056 CRM-M-47107-2023 were involved in the said conspiracy to commit the present of- fence.
11. That on 25.08.2023, the other named accused persons i.e. Tarun Kumar alias Jolly son of Satpal resident of house no.304E, Daria, Chandigarh and Tarsem Lal son of Sh. Kunji Lal resident of house no.546, Saini Vihar, Phase-2, Baltana, PS Zirakpur, District SAS Nagar, Mohali were brought to the police sta%on by their rela- %ves. AHer joining them in the inves%ga%on, they were arrested as per the rules.
12. That all the four accused persons namely Parveen Sharma, Rakesh Rana, Tarsem Lal and Tarun alias Jolly did not cooperate with the inves%ga%ng agency and they did not get recovered their share of the misappropriated amount.
13. That on dated 27.08.2023, all the four accused persons were taken into police custody for a period of five days as per the orders passed by the Ld. JMIC, Panchkula."
5. Vide order dated 08.12.2023, this Court directed the concerned Dy.SP to file a fresh reply specifying the role of the pe oner. Pursuant to that reply dated 14.02.2024 was filed wherein the role of the pe oner was given in para no. 4 and 5, which reads as follows:
4. That the present pe%%oner was posted in RTO Office, Panchkula from 07.04.2023 %ll 11.08.2023 at the post of the cashier. The details regarding her pos%ng were obtained from the DTO-cum-Secretary, RTA, Panchkula. The details of pos%ng of cashiers from 15.01.2021 upto 11.08.2023 has been annexed herewith as Annexure R-1. A bare perusal of this shows that the pe%%oner was posted in RTO Office, Panchkula from 07.04.2023 %ll 11.08.2023 at the post of the cashier. Furthermore, a copy of Office Order bearing Memo No. 536/RTA/PKL dated 07.04.2023 of DTO-cum-Secretary, RTA, Panchkula, vide which the pe%%oner was posted as cashier has been annexed herewith as Annexure R-2.
5. That during this %me the pe%%oner in connivance with other co-accused persons namely, Tarsem Lal (peon) and Tarun @ Jolly (driver) has misappropriated as sum of Rs. 33,40,330/- from the government treasury. They have not deposited the said amount in the government treasury which was collected by way of challaning the vehicles in between January to July, 2023.
6. Pe oner's counsel argued that the custodial inves ga on is neither required nor would serve any purpose whatsoever, and the pre-trial incarcera on would cause an irreversible injus ce to the pe oner and family.
7. The state's counsel opposes the bail and states that considering the allega ons, the pe oner's custodial interroga on is necessary.
8. In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 3 SCC 382, Hon'ble Supreme Court holds, [10] It is not in dispute and highlighted that the second respondent is a siFng Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases 3 3 of 7 ::: Downloaded on - 28-02-2024 06:48:31 ::: Neutral Citation No:=2024:PHHC:027056 CRM-M-47107-2023 ended in acqui<al for want of proper witnesses or pending trial.
As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdic on of the Court etc.
9. Considering each bail pe on of the accused with a criminal history throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the an thesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Informa on Reports, wherein the bail pe oner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecu ons resul ng in acqui<al or discharge, or when Courts quashed the FIR, the prosecu on stands withdrawn, or the prosecu on filed a closure report, cannot be included. Although crime is to be despised and not the criminal, for a recidivist, the contours of a playing field are marshy, and the graver the criminal history, the slushier the puddles.
10. I have heard counsel for the par es on many dates. On 16.02.2024, counsel for the pe oner filed an addi onal affidavit to clarify that neither the pe oner had received any Challan fee nor dealt with such Challan. This Court had directed the State counsel to verify this fact.
11. Counsel for the state denies all such averment and referred to a reply dated 14.02.2024 in which it was explicitly men oned that pe oner -Shilagha, whose designa on was Transport Sub Inspector, was posted as Cashier from 07.04.2023 up to 11.08.2023.
12. Counsel for the pe oner argued that the pe oner was posted as Transport Sub Inspector and was allocated an I.D. only to deal with permit fee and R.C. fee, and the pe oner never dealt with challan fee, based on which the present FIR has been registered. Referring to the addi onal affidavit dated 16.02.2024, counsel stated that the pe oner had never signed any such document, voucher slip, or cash book pertaining to receipt/deposit of challan fees. He further submi<ed that whenever the challan fees are to be deposited, an OTP (one- me password) would be automa cally generated at the me of deposit of fee; as such, OTP was generated with one Sonia. Similarly, regarding the deposit of driving fees, OTP was generated with Transport Inspector Ravinder, and the pe oner had no connec vity with such deposits. He further argued that even the inves ga on which is complete qua the arrested accused points out that the drivers and owners of the vehicles whose statements have been 4 4 of 7 ::: Downloaded on - 28-02-2024 06:48:31 ::: Neutral Citation No:=2024:PHHC:027056 CRM-M-47107-2023 recorded named, Tarun @ Jolly, Tarsem, and Sonia, to whom they had paid the challan fee, and the pe oner has not been named.
13. Counsel for the state has opposed the bail by arguing that the pe oner- Shilagha TSI (Transport Sub Inspector) was posted as a cashier in RTA Office Panchkula at relevant period i.e. from 07.04.2023 to 11.08.2023 and in connivance with Peon- Tarsem Lal and Private Driver- Tarun Kumar @ Jolly have done embezzlement from the RTA department by not deposi ng the challan amount in the Bank. The mobile is yet to be recovered from the pe oner, who used it to receive OTP (one- me Password) during her pos ng as a cashier. He further argued that Praveen Sharma TI (Transport Inspector) had not deposited the challan amount from period 11.10.2022 to 12.02.2023 and embezzled the amount in conspiracy with Rakesh Rana (Assistant-cashier), Tarsem Lal (Peon) and Tarun Kumar @ Jolly (Private Driver) from 13.02.2023 to 07.04.2023. He further argued that Rakesh Rana (Transport Sub Inspector) had not deposited the Challan and had conspired with Praveen Sharma, Tarsem Lal (Peon), and Tarun Kumar @ Jolly (Private Driver) from 13.02.2023 to 07.04.2023 for embezzling the amount by not deposi ng the Challan Amount in the concerned Bank. He further argued that Tarsem Lal Peon (in connivance with Pe oner Shilaga and Tarun Kumar @ Jolly (Private Driver on Contact Basis) have embezzled the amount by not deposi ng the Challan Amount in the concerned Bank. He further argued that Sonia is posted as a Computer Operator in the RTA Office, Panchkula, whose work was to take OTP (one- me Password) from the cashier for prin ng the receipt and submiFng it to the cashier. Based on this, the State counsel is seeking custodial interroga on of the pe oner.
14. An analysis of the pleadings and arguments would lead to the following outcome. It remains undisputed that Tarsem Lal was Peon and Tarun Kumar @ Jolly was a private driver; as such, they had no authority with the receipt of challan.
15. Briefly, the allega ons against the pe oner-Shilaga, TSI, are that she was posted as a cashier in the RTA office, Panchkula, during the relevant period i.e. from 07.04.2023 to 11.08.2023, and a cer ficate issued in this regard from the Secretary of Regional Transport Authority was placed on record in reply dated 14.02.2024 at page No.9. It would be appropriate to refer such cer ficate which reads as follows:
DTO-cum-Secretary RTA, Panchkula Cashier from 15-01-2021 upto 11-08-2023 Sr. No. Name & Designa- Order no. & Remarks on date
1. Rakesh Rana, TSI 15-01-2021 Sandeep Parshad aPer suspension HQ fixed Chandigarh on dated 14-01-2021 5 5 of 7 ::: Downloaded on - 28-02-2024 06:48:31 ::: Neutral Citation No:=2024:PHHC:027056 CRM-M-47107-2023
2. Parveen Sharma TI/ 560/12-04-
Rakesh Rana TSI 2022 3. Parveen Sharma, TI 2348/11-10- 2022 4. Parveen Kumar, TI 264/13-02- Relieved Parveen Singh, TI 07-04-2023 & Rakesh Rana 2023 5. Shalagha, TSI 536/07-04- Upto 11-08-2023 2023
16. A perusal of the said cer ficate explicitly points out the pos ngs of the cashier.
The pe oner- Shilaga, TSI, was posted as a cashier from 15.01.2021 to 11.08.2023. As of this date, 05 persons have been arraigned as accused. Parveen Sharma and Rakesh Rana were posted as Transport Sub Inspectors, Tarsem Lal was a Peon, and Tarun Kumar was a contract driver who acted allegedly in conspiracy with other accused. Thus, the analysis of the cer ficate reveals that it is explicitly clear that the pe oner was posted as a cashier at relevant me i.e. from 07.04.2023 to 11.08.2023. In paragraph 5 of the affidavit dated 14.02.2024, it has been men oned that during this period, an amount of Rs.33,40,330/- was not deposited in the Government Treasury by the pe oner in connivance with Tarsem Lal (Peon) and Tarun @ Jolly, (Driver). Since the pe oner was a cashier, it cannot be stated that without her connivance, Tarsem Lal and Tarun @ Jolly, who was just a peon and driver, would have misappropriated the amount.
17. Be that as it may, without adjudica ng the en tlement of an cipatory bail to the pe oner on merits based on the averments made in para 12 of the bail pe on, qua psychological problems. The psychological disorders are supported by medical evidence in Annexure P-2, which corroborates the treatment from 1 November 2017 to 10 June 2023. As per counsel on instruc ons, she s ll has similar mental condi ons. On this ground, coupled with the fact that the pe oner is a woman and that the amount can easily be recovered from her salary, she is en tled to bail. Per the pe oner's counsel, she has already declared her assets in compliance with the previous order. This bail is subject to the condi on and direc ons that the inves gator shall con nue her inves ga on to recover the outstanding amount a<ributed to her. If she fails to cooperate, the concerned SP will apply to cancel this bail.
18. Within one month from today, the pe oner is directed to undergo complete medical tests from a government hospital and hand over a copy of her report to the department, which will take a priority decision under the concerned law and rules rela ng to psychological issues.
19. Any observa on made hereinabove is neither an expression of opinion on the case's merits, neither the court taking up regular bail nor the trial Court shall advert to 6 6 of 7 ::: Downloaded on - 28-02-2024 06:48:31 ::: Neutral Citation No:=2024:PHHC:027056 CRM-M-47107-2023 these comments.
Pe//on allowed. Interim order is confirmed and made absolute, subject to the pe//oner complying with the above men/oned direc/ons. All pending applica ons, if any, also stand disposed.
(ANOOP CHITKARA)
JUDGE
27.02.2024
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
Neutral Citation No:=2024:PHHC:027056
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