Himachal Pradesh High Court
Between vs State Of H.P. Through Secretary on 7 January, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 7th DAY OF JANUARY, 2022
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) NO. 2001 OF 2021
Between:-
SHRI AARIF
SON OF SHRI RUJDAR,
RESIDENT OF VILLAGE GADI MEWAT,
P.O. HINGOTA, TEHSIL DEEG,
DISTRICT BHARATPUR RAJASTHAN,
PIN 321203, AGED ABOUT 25 YEARS.
OCCUPATION: TRUCK DRIVER,
PRESENTLY LODGED IN JUDICIAL
LOCKUP AT SUB JAIL, SOLAN, (H.P.)
r .....PETITIONER
(BY SH.RAJESH KUMAR PARMAR,
ADVOCATE)
AND
STATE OF H.P. THROUGH SECRETARY
.....RESPONDENT
(HOME), TO THE GOVERNMENT OF
HIMACHAL PRADESH, SHIMLA, H.P.
(BY SH.RAJU RAM RAHI, DEPUTY
ADVOCATE GENERAL)
CRIMINAL MISC. PETITION (MAIN) NO.2132 OF 2021
Between:-
SHRI RAJEEV KUMAR
SON OF SHRI MANGI RAM,
RESIDENT OF HOUSE NO.260,
NEW COLONY DELHI ROAD BELAKA
TEHSIL & DISTRICT ALWAR,
RAJASTHAN,
AGED ABOUT 33 YEARS.
OCCUPATION: HAIR DRESSER.
PRESENTLY LODGED IN JUDICIAL .....PETITIONER
LOCKUP AT SUB JAIL, SOLAN, (H.P.)
(BY SH.RAJESH KUMAR PARMAR,
ADVOCATE)
AND
::: Downloaded on - 31/01/2022 23:34:51 :::CIS
2
STATE OF H.P. THROUGH SECRETARY
(HOME), TO THE GOVERNMENT OF
...RESPONDENT
HIMACHAL PRADESH, SHIMLA, H.P.
(BY MR.RAJU RAM RAHI, DEPUTY
ADVOCATE GENERAL)
.
Whether approved for reporting?
Reserved on : 04.01.2022
Decided on : 07.01.2022
These petitions coming on for pronouncement this
day, the Court passed the following:
ORDER
Both petition(s) have been filed seeking regular bail under Section 439 of the Criminal Procedure Code (in short Cr.P.C.) in case FIR No.70 of 2020, dated 04.06.2020, registered in Police Station Dharampur, District Solan, H.P., under Sections 420 and 120-B of the Indian Penal Code (in short 'IPC') and Sections 66 and 66(D) of Information Technology Act, 2000 (hereinafter referred to as 'I.T. Act').
2. Status report stands filed, wherein the manner in which offence alleged to have been committed by the petitioner(s) alongwith others and they caused the victim to transfer/transmit `2,90,000/-, has been narrated in detail. It has also been stated that during investigation it has also surfaced that petitioner(s) had also received amount by cheating other persons also and further that despite earnest efforts by police other co-accused were not traceable.
3. In brief, as per status report, complainant Prakash had submitted a written complaint in the Office of ::: Downloaded on - 31/01/2022 23:34:51 :::CIS 3 Superintendent of Police Solan, District Solan, H.P., against one Amit Chand, son of Sh.Fateh Singh, resident of 5764/6, New Chandrawal, Jawahar Nagar, Delhi, for committing fraud with the .
complainant by deceiving him fraudulently or dishonestly inducing him for purchase of a car Mahindra Scorpio bearing registration No.DL-8C AC-2043 through online/Facebook and fraudulently obtained a sum of `2,90,000/- from the complainant.
4. Complainant is a driver by profession and he used to ply his own taxi. According to complainant, accused Amit Chand had uploaded photographs of Car Scorpio, R.C. and his mobile number on Facebook with offer to sell the said vehicle by introducing him as an Army personnel. Complainant contacted him on the mobile publicized on Facebook, whereafter on the assurance of accused, complainant paid a sum of `5000/- as booking amount in the account supplied by Amit Chand and thereafter, accused Amit had asked the complainant to make payment of remaining amount which was made by the complainant by transferring the amount through the Bank/Google Pay and in such a manner total amount of `2,90,000/- was transferred by the complainant, but the accused did not handover possession of the vehicle to the complainant despite various requests and on asking for car or money, accused Amit Chand switched off his mobile. On the basis of this complaint, FIR was registered and investigation carried on.
5. During investigation, on the basis of Google Pay account, mobile phones and Paytm accounts, involvement of ::: Downloaded on - 31/01/2022 23:34:51 :::CIS 4 present petitioners Aarif and Rajeev Kumar in commission of offence was found. Therefore, they were located on the basis of mobile locations etc. and associated in the investigation. On .
finding sufficient material establishing involvement of petitioners Aarif and Rajeev Kumar, they were arrested on 14.03.2021 and 20.03.2021 respectively. Since then, after remaining in police custody, they are in judicial custody. As per status report, other accused persons are not traceable despite making all out efforts and challan has been presented against the petitioners on 13.05.2021 and thereafter, evidence of the complainant has been recorded on 17.08.2021.
6. In the status report, it has been stated that involvement of Rajeev Kumar was also suspected in case FIR No.54 of 2020, registered in Police Station Theog, District Shimla, H.P. under Section 420 of IPC and, therefore, he was arrested in the said FIR, but during investigation, for not finding any evidence against him, he was discharged under Section 169 Cr.P.C. in the said FIR. According to status report, there is no other case registered against the petitioners.
7. Case has been fixed for evidence of remaining witnesses, who are mainly official witnesses. Petitioners have also approached this Court in June, 2021 by filing Cr.M.P.(M) Nos.942 and 943 of 2021, which were dismissed by this Court taking into consideration the order passed by learned Sessions Judge, dismissing their bail applications vide order dated 28.05.2021 and considering cumulative effect of facts and ::: Downloaded on - 31/01/2022 23:34:51 :::CIS 5 circumstances, and also weighing personal interest of the petitioners with societal interest, and impact of release of the petitioners on the society, at that stage. Thereafter, petitioner .
Aarif had again approached this Court by filing Cr.M.P.(M) No.1434 of 2021 and the said bail application was dismissed as withdrawn on 01.09.2021.
8. In the aforesaid background, present petition has been filed for enlarging the petitioners on bail.
9. Learned counsel for the petitioners submits that since filing of the previous applications till date, there is change in circumstances and now statement of complainant has also been recorded and petitioners, who are behind the bars since March, 2021, have completed almost nine months in judicial custody and, therefore, further continuation of their judicial custody during trial would amount to their pre-trial conviction, particularly when both the petitioners are ready to furnish local sureties to the satisfaction of the Court and also to abide by any condition imposed upon them by the Court at the time of granting bail for assuring their presence during trial.
10. It has been submitted by learned Deputy Advocate General that cyber crimes are day by day leading to loss of huge hard earned money of the innocent people and, therefore, petitioners are not entitled for bail. Whereas, learned counsel for the petitioners submits that for increase in cyber crimes cannot be a ground to punish the petitioners by keeping them behind the bars as under trial prisoners, particularly when main accused ::: Downloaded on - 31/01/2022 23:34:51 :::CIS 6 is someone else, who has neither been traced nor has been subjected to trial by the police and the petitioners have been made scapegoat by the police, who had, if any, minimum role in .
the entire episode that too innocently by allowing transaction of money through them. According to him, petitioners were not aware that the amount being routed through them was part of transaction based on deceit or fraud.
11. Claim and counter claim with respect to involvement or innocence of the petitioners-accused in commission of offence is to be determined by the trial Court after evaluation of material placed on record on the basis of evidence led during trial.
Keeping in view entire facts and circumstances and the fact that statement of the complainant has been recorded coupled with period of detention, alongwith factors and parameters to be taken into consideration as detailed in the pronouncement of the Supreme Court, particularly when petitioners are ready to furnish local sureties, I find that at this stage, petitioners may be enlarged on bail.
12. Accordingly, present petitions are allowed and petitioners are directed to be enlarged on bail, subject to their furnishing personal bond in the sum of `1,00,000/- each with two local sureties in the like amount, as undertaken by the petitioners, to the satisfaction of the trial Court, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the presence of petitioner/accused at the time of trial:-
::: Downloaded on - 31/01/2022 23:34:51 :::CIS 7(i) That the petitioners shall make themselves available to the police or any other Investigating Agency or Court in the present case as and when required;
(ii) that the petitioners shall not directly or indirectly .
make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to Court or to any police officer or tamper with the evidence. They shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
(iii) that the petitioners shall not obstruct the smooth progress of the investigation/trial;
(iv) that the petitioners shall not commit the offence similar to the offence to which they are accused or suspected;
(v) that the petitioners shall not misuse their liberty in any manner;
(vi) that the petitioners shall not jump over the bail;
(vii) that in case petitioners indulge in repetition of similar offence(s) then, their bail shall be liable to be cancelled on taking appropriate steps by prosecution;
(viii) that the petitioners shall not leave the territory of India without prior permission; and
(ix) that the petitioners shall inform the Police/Court their contact numbers and shall keep on informing about change in addresses and contact numbers, if any, in future.
13. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioners as deemed necessary in the facts and circumstances of the case and in the interest of justice and ::: Downloaded on - 31/01/2022 23:34:51 :::CIS 8 thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioners as it may deem necessary in the interest of justice.
.
14. In case the petitioners violate any condition imposed upon them, their bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.
15. Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc.
Instructions/93-IV.7139 dated 18.03.2013.
16. Observations made in these petitions hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.
17. Petitions are disposed of in aforesaid terms.
18. Copy dasti.
19. Petitioners are permitted to produce a copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High Court.
(Vivek Singh Thakur), Judge.
January 7, 2022 (Purohit) ::: Downloaded on - 31/01/2022 23:34:51 :::CIS