Punjab-Haryana High Court
State Of Haryana vs Jitender Singh Joon And Others on 26 February, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:026011
CRM-M-26973-2023
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-26973-2023
Reserved on: 13.02.2024
Pronounced on: 26.02.2024
State of Haryana ...Pe oner
Versus
Jitender Singh Joon and others ...Respondents
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Vikrant Pamboo, Sr. D.A.G., Haryana.
Mr. P.S. Ahluwalia, Advocate for respondent No. 1.
Mr. Arshdeep Bhullar, Advocate for respondent No. 2.
Mr. Baljeet Beniwal, Advocate for respondents No. 3 and 4.
Mr. Mukesh Rao, Advocate for respondent No. 5.
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ANOOP CHITKARA, J.
FIR No. Dated Police Sta1on Sec1ons 408 29.09.2022 Gadpuri, Palwal 420, 409, 120-B IPC and 7, 7A, 13 of Preven on of Corrup on Act, 1988
1. Seeking cancella on of bail granted to the respondents in the above cap oned FIR vide order dated 17.11.2022 passed by the learned Addi onal Sessions Judge, Palwal, the State has come up before this Court under Sec on 439 (2) CrPC.
2. The facts of the case are being taken from paragraphs No.2 to 10 of the pe on, which reads as follows:
2. That the brief facts of the case are that on 20.07.2021, respondent No. 1 and 2 were on duty on road-side checking in the area of District Palwal near Bhagola with suppor"ng staff namely Rohtash (Respondent No. 4) (driver) and Ravi Kumar (respondent No. 3) (peon) on their Govt. vehicle bearing No. HR-70C-4295. During checking, they intercepted a truck bearing registra"on No. UP-80- DT-7407 near Bhagola Dharam Kanta and was taken to Dharam Kanta. On that day in the evening, an audio clip got viral on social media containing some incrimina"ng material against respondent No. 1 and 2, upon which cognizance was taken up by the 1 1 of 7 ::: Downloaded on - 27-02-2024 02:43:56 ::: Neutral Citation No:=2024:PHHC:026011 CRM-M-26973-2023 authori"es and Respondent No.1 and 2 were suspended vide order dated 30.07.2021 by the order of Addi"onal Chief Secretary, Excise and Taxa"on Department, Haryana. Therea9er, respondent No. 2 was charge sheeted under Rule 7 of the Haryana Civil Services Rules, 2016 vide memo dated 15.04.2022 and similarly Respondent No.1 was also charge sheeted vide memo dated 29.10.2021. On the basis of the above-men"oned facts above-men"oned FIR was registered. True translated copy of the FIR is appended as Annexure P-1.
3. That it is per"nent to men"on that a9er the release of audio dip on social media an Enquiry No. 01/2021 dated 09.08.2021 came to be registered in police sta"on SVB, Faridabad pursuant to Order No. 33/16 / 2021 -3/Vig-1 dated 04/08/2021 of the Chief Secretary (Vig.), Government of Haryana, conveyed through le@er No. 12264/1-2/SVBN(H) dated 09.08.2021.
4. That the allega"ons in the enquiry related to an audio clip leaked in social media, which in turn was telecasted in the local news channels on 23.07.2021 are to the effect that Sh. Harish Batra, the then AETO, Palwal (Respondent No.2) and Sh. Jitender Joon (Respondent No.1), the then Taxa"on Inspector, Department of Excise and Taxa"on, office of DETC (ST), Palwal, on 20.07.2021 while conduc"ng inter district road side checking of vehicles on the intervening night of 20.07.2021, intercepted vehicle number UP-80- DT-7407. The driver of the vehicle made Jitender Joon (Respondent No.1), Taxa"on Inspector, speak through his mobile phone to one Bharat Tewa"a who was speaking as Gagan Modi. While talking to Jitender Joon, Bharat Tewa"a (who was trying to conduct a s"ng opera"on and as such was recording the said call) requested Jitender Joon to exempt the vehicle in ques"on from being checked or penalized on the plea that the said vehicle was added to the exis"ng list only recently a9er due in"ma"on to Sanjeev. In the said call, which was recorded and of which a transcript was also created, indicated that Jitender Joon (Respondent No.1) unequivocally acknowledged the fact that the name of the vehicle does not figure in the list and hence claimed to have challaned it. The Respondent No.1 in fact asked Bharat Tewa"a (who was posing himself to be Gagan Modi) to check his own list for verifying the fact that whether the name of the truck in ques"on is present in the list or not. A copy of the Pen Drive, containing the conversa"on between the complainant and Respondent No.1 is a@ached as Annexure P-2 and true translated copy of the transcript of the audio conversa"on is a@ached as Annexure P-3. Thus, it is evident 2 2 of 7 ::: Downloaded on - 27-02-2024 02:43:57 ::: Neutral Citation No:=2024:PHHC:026011 CRM-M-26973-2023 from the audio recording that there exists a list of vehicles which are not to be challaned during the "me of checking and the en"re discussion is about the non availability of name of transporter/ vehicle in the said list due to which it was challaned. Besides, detailed informa"on, received in this regard from a source, a copy of which was shown to the Ld. Trial Court in a sealed cover. The enquiry, therefore, was focussing on the existence of a cartel/ syndicate of the transporters, middlemen and officers/ officials of the Taxa"on Department, Government of Haryana, who in conspiracy among themselves were causing huge revenue loss to the Government by exemp"ng vehicles of the transporters in the preferred list from being checked or penalized for viola"on of rules / regula"ons, laws of the Taxa"on department, in lieu of huge monthly illegal gra"fica"on collected from such transporters, through ac"ve middlemen.
5. That upon comple"on of such enquiry and being sa"sfied about the commission of such offences by the concerned public servants in collusion with the transporters and middlemen, by State Vigilance Bureau, Faridabad, a report recommending registra"on of a FIR under the appropriate sec"ons of law was sent to the office of the DG/SVB/Panchkula vide office le@er No. 2493 dated 27/09/2022 which in turn was forwarded by the office of DG/SVB/Panchkula to the office of the Chief Secretary (Vigilance), Government of Haryana vide Memo No. 16554/SVB(H) dated 18/10/2022. However, before, orders for the registra"on of case by SVB/ Faridabad could be issued by the Government, it came to the no"ce that the Deputy Excise and Taxa"on Commissioner (ST), Palwal, on the basis of direc"ons issued by the then Addi"onal Excise and Taxa"on Commissioner (Enforcement), Panchkula, based on the approval of the Addi"onal Chief Secretary (Taxa"on), got an FIR registered on 29/09/2022, with Police Sta"on Gadpuri, Palwal.
6. That it is per"nent to men"on here the Excise and Taxa"on Commissioner, Haryana had proposed registra"on of Criminal case on 29.07.2021 which was duly approved by the Government on 30.07.2021, however, no FIR was got registered against the accused persons at that "me. During the vigilance enquiry No. 1 dated 09.08.2021, which was registered on the orders of the Government and was well within the knowledge of the officers of Excise and Taxa"on Department, as soon as the recommenda"on for registra"on of a criminal case was sent from State Vigilance Bureau, Faridabad, the officers of Excise and Taxa"on Department sprang into ac"on and got the present FIR registered on 3 3 of 7 ::: Downloaded on - 27-02-2024 02:43:57 ::: Neutral Citation No:=2024:PHHC:026011 CRM-M-26973-2023 29.09.2022, apparently to frustrate the vigilance enquiry and to pre-empt an inves"ga"on by the State Vigilance Bureau. The role of public servant who are involved in this episode is also being inves"gated by the State Vigilance Bureau.
7. That immediately a9er the registra"on of the FIR in the present ma@er respondent No. 2 - Harish Batra, on 06.10.2022, filed an applica"on under sec"on 438 Cr.P.C. before the Court of Ld. Addi"onal Sessions Judge, Palwal for grant of an"cipatory bail. On 07.10.2022 i.e. the very next day the Id. Addi"onal Sessions Judge, Palwal granted interim bail to respondent No. 2 without any reasonable cause or jus"fica"on and the ma@er was fixed for 11.10.2022. On 11.10.2022 it was informed to the Ld. Court that the State Vigilance Bureau has sought permission from the Government of Haryana to take over the said FIR, hence, a report was called from State Vigilance Bureau, Faridabad. True copies of orders dated 07.10.2022 and 11.10.2022 are appended as Annexure P-4 and Annexure P-5.
8. That in the mean"me respondent No. 3 and 4 also filed applica"ons under sec"on 438 Cr.P.C. on 17.10.2022. Similarly respondent No. 1 i.e. Jitender Singh Joon filed applica"on for grant of an"cipatory bail on 26.10.2022 and respondent No. 5 Gagan Modi filed his applica"on on 11.11.2022.
9. That State Vigilance Bureau, on receiving the no"ce from the Ld. Court immediately appeared before it and filed reply to the an"cipatory bail applica"ons of all the respondents/ accused. A copy of one such reply filed by the State Vigilance Bureau, Faridabad is appended as Annexure P-6.
10. That vide common order dated 17.11.2022 the Court of Ld. Addi"onal Sessions Judge, Palwal allowed the applica"ons filed by the respondents for grant of an"cipatory bail subject to the condi"ons as an envisaged under sec"on 438 (2) Cr.P.C. True copy of the Impugned order dated 17.11.2022 passed by the Ld. Addi"onal Sessions Judge, Palwal is appended as Annexure P-7.
3. I have heard counsel for the par es and gone through the record.
4. Counsel for respondent No. 1 has made the following arguments, which reads as follows:
(i) That in any case the respondent no.1 was granted bail vide order dated 17.11.2022 and the said order was not challenged by the pe oner State ll 22.05.2023 by way of the present pe on i.e. a<er a delay of 6 months, that too, 4 4 of 7 ::: Downloaded on - 27-02-2024 02:43:57 ::: Neutral Citation No:=2024:PHHC:026011 CRM-M-26973-2023 without any averment of the respondent tampering with inves ga on or in mida ng witnesses. He further submits that it is a well se=led posi on of law that cancella on of bail once granted and rejec on of bail in a non-bailable offence are not the same and are to be dealt with dis nctly as the Hon'ble Supreme Court in Daulat Ram and Ors V. State of Haryana 1995 (1) SCC 349 held that very cogent and overwhelming circumstances are required for cancella on of bail. The Hon'ble Apex Court in this case held that bail should not be cancelled in a mechanical manner without considering other supervening circumstances such as whether the accused would influence the inves ga on, flee from jus ce etc. In the present case there is no supervening circumstance has been made out by the prosecu on for interference.
(ii) Next leg of arguments of respondent counsel are that the FIR was transferred to the State Vigilance Burearu before the impugned order was passed and a perusal of the Zimni orders would reveal the bail pe on of the respondent was duly contested by the State Vigilance Bureau and a detailed reply (P/6) was also filed by the Vigilance Bureau and a categoric finding was recorded by the learned Court to the effect that the respondent had joined the enquiry on mul ple occasions and had fully cooperated as reflect from Annexure (R-1/2 to R-1/5). During the course of inves ga on the voice samples of the respondent were taken by the Inves ga ng Agency and since the en re case of the prosecu on was based on the audio recording the same were sent to FSL for laboratory tes ng.
(iii) He also refer FSL report qua voice samples has been received which is reproduced below:
"On the basis of auditory and spectrographic examina"ons of ques"oned voice sample marked Q-5(A) with the specimen voice samples of Harish Batra marked SI(A) & Ja"nder Joon marked S2(B) using mul" speech so9ware. It has been observed that voice sample marked Q5(a) was found more close with the specimen voice sample marked S1(A) i.e of Harish Batra as compared to specimen voice sample of Jitender Joon marked S2(B) in respect of available 'acous"c and other 'linguis"c & phone"c' features."
Counsel submits that a perusal of the aforesaid makes it abundantly clear that it was co-accused Harish Batra who had been recorded in the alleged audio clip and not Jitender Joon (respondent no.1) as had been claimed by the prosecu on. False implica on of the respondent no.1 is evident from the report received from the FSL as the en re case of the prosecu on was based on the fact that it was the respondent no.1 was in the recorded audio clip.
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(iv) Counsel further submits that the Vigilance Bureau had ini ally indicated that there was no need for registra on of FIR and recommended that departmental ac on be taken against the accused persons. Therea<er departmental ac on had been ini ated against the respondent as show cause no ce was issued to him but a<er filing reply to the show cause no ce no departmental ac on was taken against him and the present FIR was registered. Moreover, a perusal of the impugned order (P/7) would reveal that while gran ng bail to the respondent the learned Court had granted liberty to the Inves ga ng Agency to seek cancella on of the bail granted to the respondent in case he does not cooperate with the inves gator and a perusal of the pe on filed by the state would reveal that no averment or allega on has been raised regarding the respondents not coopera ng with the inves gator. He was further argued that the occurrence is of the year 2021 and bail was granted to the respondent on 17.11.2022 and the inves ga on in the present FIR is almost complete with the presenta on of two sets of Challan against the co-accused persons. Therefore, no useful purpose would be achieved by cancella on of bail granted to the respondent.
6. Counsel for respondent No.2 Harish Batra has made the following arguments:
(i) No evidence of any demand, acceptance or recovery qua the answering respondent is there on record to a=ract the provisions of Sec on 7, 7A and 13 of the PC Act, as has been observed in the order passed by the Ld. Trial Court and rather the witness of the prosecu on has stated that there was no demand on part of the answering respondent. En re case of the prosecu on is based on an audio clip that went viral on YouTube. Admi=edly, as per the own version of the prosecu on the alleged conversa on/chat took place between Respondent No.1 and one Bharat Tewa a (speaking as Gagan Modi) and not the answering respondent. Also, the prosecu on has stated that the original source of recording of audio and the mobile phone of the witness has not been taken into possession.
7. It remains undisputed that respondents No. 1 and 2 are the main accused and their voice samples were sent to the FSL. The report of the Assistant Director states that the voice is probable voice of the same person.
8. Given the report wherein the laboratory has found the voice as probable, on this ground alone, there is no reason to interfere in the bail already granted to the respondents. Moreover, there is no allega on of tampering with the inves ga on, non- coopera on with inves gator or in mida ng any witness. No ground is made out to cancel the bail granted to respondents.
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9. Any observa on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
Pe11on dismissed in aforesaid terms. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
26.02.2024
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
Neutral Citation No:=2024:PHHC:026011
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