Full Text
HIGH COURT OF DELHI
Date of Decision: 21.02.2025
RISHI RAJ PAL SINGH CHAUHAN .....Petitioner
Through: Mr. Kanhaiya Singhal, Mr. Prasanna, Mr. Ajay Kumar, Mr. Binwant Singh and Mr. Rishabh Bhardwaj, Advocates.
Through: Mr. Laksh Khanna, APP for the State Insp. Manoj Dahiya and Insp.
Amleshwar, PS Crime Branch
MANMEET PRITAM SINGH ARORA, J (ORAL):
JUDGMENT
1. The present application under Section 483 of the Bharatiya Nagarik Suraksha Sanhita, 2023 read with Section 439 of the Code of Criminal Procedure, 1973 (Cr.P.C.), has been filed by the Applicant seeking grant of regular bail in FIR No. 216/2019 dated 16.11.2019 registered at Police Station (P.S.) Greater Kailash, Delhi for offence under Section 365 of the Indian Penal Code, 1860 (‘IPC’). Brief Facts
2. The case of the prosecution as borne out from the status report is that on 16.11.2019, Ms. Shashi Kiran Sharma filed a missing person complaint with P.S. Greater Kailash, Delhi of her brother Sh. Arun Kumar Sharma, aged 64 years. She stated that her brother left his residence on 15.11.2019 at around 8:35 AM, to attend a Court proceeding at Gurugram and was scheduled to meet his lawyer, Shri Karthik K.R. at M.G. Road Metro Station at 10 AM; however, he has been missing ever since. She stated that her brother was having a property dispute with one, Mr. Rishi Raj Pal Singh Chauhan/Applicant herein and one, Chander Bala [w/o Mr. Rishi Raj Pal Singh Chauhan] qua property bearing House No. 1094-A, Sector-17, Urban Estate, Gurugram. She stated that since her brother secured a favourable order from the Supreme Court qua the said property and on 15.11.2019 her brother was on his way to attend the execution proceeding at Gurugram regarding the said property. She stated that she had an apprehension that her brother has been kidnapped by Mr. Rishi Raj Pal Singh Chauhan and Chander Bala.
2.1. It is stated that subsequently, the subject FIR was registered and during the police investigation, the three suspects - Mr. Rishi Raj Pal Singh Chauhan/Applicant, his wife Chander Bala and their son Hitesh Chauhan were interrogated and their CDRs were also analyzed. However, there was no clue of the whereabouts of the victim i.e., Sh. Arun Kumar Sharma, and therefore, on 27.11.2019, the case was transferred to Anti Human Trafficking Unit (‘AHTU’) of Crime Branch for conducting further investigation.
2.2. It is stated that during the investigation conducted by AHTU, Crime Branch, CCTV footage from the victim’s residential area were seized and examined. This CCTV footage captured the images of two (2) suspects namely, Priyank Khanna alias Prince and Sahil Kumar alias Bunty. Additionally, a white Mahindra Scorpio car bearing registration number DL 3CBC 8941 was also identified in this footage. It is stated that upon verification, it was discovered that this registration number was fake and belonged to a white Ritz car.
2.3. It is stated that on 04.12.2019, the Applicant and his son Hitesh Chauhan were called to the office of AHTU for further investigation and during the investigation the Applicant broke down and admitted to his involvement in the crime against the victim. The Applicant and his son, disclosed that they had engaged 3 persons, (i) Amet Vikram Chabbra, (ii) Priyank Khanna alias Prince and (iii) Sahil Kumar alias Bunty to kidnap and eliminate the victim.
2.4. It is stated that thereafter, suspects Amet Vikram Chabbra, Priyank Khanna and Sahil Kumar were picked up and during the interrogation all three of them admitted to their involvement in the crime against the victim.
2.5. It is stated that white Mahindra Scorpio car and mobile phones used by the accused persons at the time of the incident were also seized.
2.6. It is stated that the story behind this whole incident is that there was a legal dispute over an immovable property between the Applicant and the victim herein. It is stated that the victim after obtaining a favourable order from the Supreme Court won the title to the disputed property. It is stated that the matter before the Court at Gurugram on 15.11.2019 was about execution of the said order and if the execution court had passed an order of eviction, the Applicant would have had to vacate the premises.
2.7. It is stated that in view of these circumstances, the Applicant wanted the victim to be eliminated and therefore, he discussed this issue with this his friend, Harsh Chhabra, who as well is an accused in the matter. It is stated that the co-accused Harsh Chhabra promised the Applicant that his problem will be solved and the solution would cost him Rs. 25 lakhs. It is stated that since the Applicant agreed to pay a sum of Rs. 25 lakhs to eliminate the victim, co-accused Harsh Chhabra sent his son, co-accused Amet Vikram Chhabra to the Applicant’s house to finalize the details. It is stated that a meeting was held between the accused persons – the Applicant, Applicant’s son-Hitesh Chauhan, Amet Vikram Chhabra, Priyan Khanna and after finalizing the deal to eliminate the victim, an advance money of Rs. 1 lakh was given to Amet Vikram Chhabra.
2.8. It is stated that as per the plan, in the morning of 31.10.2019, both the Applicant and his son Hitesh Chauhan took co-accused persons – Amet Vikram Chabbra, Priyank Khanna and Sahil Kumar to Debt Recovery Tribunal (‘DRT’), Jeevan Tara Building, Connaught Place, New Delhi, as the victim had a hearing date in the DRT that day. It is stated that co-accused Hitesh Chauhan pointed at the victim and thereafter, co-accused persons – Amet Vikram Chabbra, Priyank Khanna and Sahil Kumar followed the victim in DRT and then all the way to the victim’s home (situated in Kailash Colony, New Delhi) to recce the victim’s house. It is stated that location of mobile numbers of all the accused persons - the Applicant, Hitesh Chauhan, Amet Vikram Chabbra, Priyank Khanna and Sahil Kumar as per CDRs was found at Jeevan Tara Building, Connaught Place, New Delhi on 31.10.2019. It is stated that the location of co-accused Amet Vikram Chabbra, Priyank Khanna and Sahil Kumar was also found at Kailash Colony on 31.10.2019 at about 4:54 PM.
2.9. It is stated that the white Mahindra Scorpio car belonged to coaccused Amet Vikram Chhabra and on 14.11.2019, co-accused Sahil Kumar got fake number plates prepared for the said car.
2.10. It is stated that on 15.11.2019, co-accused-Amet Vikram Chabbra, Priyank Khanna and Sahil Kumar reached Kailash Colony, Delhi at about 5 AM and waited in the car till 8 AM. It is stated that thereafter, around 8 AM, while Amet Vikram Chhabra remained seated in the car, both Sahil Kumar and Priyank Khanna took position outside victim’s house. It is stated that at about 9 AM, the victim left his house and as soon as the victim came close to the Scorpio car, which Amet Vikram Chhabra had parked near the Kailash Colony Metro Station, Sahil Kumar and Priyank Khanna caught and dragged the victim on the rear seat of the car.
2.11. It is stated that while Amet Vikram Chhabra was driving while, Sahil Kumar and Priyank Khanna who were sitting on the either side of the victim, strangulated the victim with a gamchha they had brought with them and thereafter, they threw away the victim’s mobile phone after taking out the SIM card, a little distance away.
2.12. It is stated that thereafter, around 9:18 AM shortly after the victim was kidnapped, co-accused Amet Vikram Chhabra received a call from coaccused Hitesh Chauhan [from mobile number 9873685044]. During the call, co-accused Amet Vikram Chhabra informed co-accused Hitesh Chauhan that the job has been done and thereafter, following instructions of Hitesh Chauhan, the trio Amet Vikram Chhabra, Sahil Kumar and Priyank Khanna reached Jhadsa Chowk, Gurgaon with victim's corpse as Hitesh wanted to verify the killing. There co-accused Hitesh Chauhan saw the dead body and further instructed them to dispose it off somewhere far away in Uttar Pradesh.
2.13. It is stated on 15.11.2019, the trio Amet Vikram Chhabra, Sahil Kumar and Priyank Khan dropped the victim’s dead body in a canal in Morena, Madhya Pradesh. It is stated that at the instance of the accused persons, an unidentified dead body was found by local police of P.S. Civil Lines, District Morena, Madhya Pradesh and upon verification the body was identified as that of the victim.
2.14. It is stated that the charge-sheet in the subject FIR has been filed under Section 302/364/201/120B/34 of IPC has been filed on 02.03.2020 and charges against the accused persons have been framed. Arguments on behalf of the Applicant
3. Mr. Kanhaiya Singhal, learned counsel for the Applicant states that the prosecution has made its case against the accused persons by segregating them in two group i.e., conspiracy part and execution part. He states that coaccused Amet Vikram Chhabra, Sahil Kumar, Priyank Khanna, have been kept in execution part of the commission of the alleged crime, whereas, coaccused Hitesh Chauhan, Harsh Chhabra and the Applicant have been kept in conspiracy group.
3.1. He states that all the other accused person except the Applicant have been granted bail, even though they were alleged to have been involved in the commission of the offence viz. Amet Vikram Chhabra, Sahil Kumar, Priyank Khanna by the Trial Court, whereas, Hitesh Chauhan and Harsh Chhabra have been granted bail by this Court.
3.2. He states that the only evidence, apart from the alleged motive, against the Applicant is his disclosure statement which is otherwise not admissible in evidence.
3.3. He states that there has been no recovery of any kind whatsoever either at the instance of the Applicant or from his possession.
3.4. He states that so far as the alleged SIM/mobile number 9873685044 is concerned, the CAF[1] is registered in the name of one Harish Babu. He states that the said mobile number was shown to be recovered at the instance of the Applicant’ son Hitesh Chauhan on 09.12.2019. He states that no reliance can be placed on the recovery of the alleged SIM/mobile number 9873685044 as, the alleged SIM was not recovered at the instance of Applicant and thus, it cannot be used as incriminating against the Applicant.
3.5. He states that the said SIM/mobile number has been linked between the Applicant and co-accused Harsh Chhabra, who has already been granted bail by this Court. He stated that the High Court while granting bail to coaccused Harsh Chhabra vide judgment dated 02.04.2024 passed in BAIL APPLN. 3689/2022, clearly records that CDR data is not a substantive piece of evidence.
3.6. He states that deposition of police officials i.e., PW-6 and PW-7 contradict the prosecution theory and disproves their contention that the other co-accused i.e., Sahil Kumar, Priyank Khanna, Amet Vikram Chhabra were arrested at the instance of the Applicant herein. He states that in fact, as per the testimony of PW-6 and PW-7 other co-accused persons were arrested before the Applicant and his son i.e., the co-accused Hitesh Chauhan.
3.7. He states that the investigation in the present matter has been completed and the matter is at the stage of examination of witnesses. He stated that only 13 witnesses out of 54 witnesses have been examined till date and therefore there is no certain period in which the trial will be completed and the Applicant cannot be detained for an indefinite period Customer Acquisition Form which would as a result violate right of the Applicant under Article 21 of the Constitution of India.
3.8. He states that the Applicant is 70 years and is suffering with several medical issues and thus, this may also be considered the medical condition of the Applicant while deciding this bail application. He refers to first proviso of Section 437(1) Cr. P.C. Arguments on behalf of the State
4. In reply, Mr. Laksh Khanna, learned APP opposes the bail application of the Applicant. He states that the Applicant herein is the main conspirator, who engaged all the accused persons and hatched a plan to kill the deceased in cold blood to retain possession of the property against which the deceased had succeeded in litigation after following due process of law.
4.1. He states that the Applicant cannot claim parity with the other coaccused. In this regard he relies upon the judgment of the Supreme Court in Tarun Kumar v. Assistant Director Directorate of Enforcement[2], wherein the Supreme Court held that a benefit or advantage conferred on one or set of people by the court, without legal basis or jurisdiction, other persons could not claim as a matter of right the benefit on basis of such wrong decision.
4.2. He states that the motive of the Applicant behind commission of crime i.e., retaining possession of the property has been settled and remains undisputed throughout the trial.
4.3. He states that during the investigation it was revealed that on 31.10.2019, Amet Vikram Chhabra, Sahil Kumar and Priyank Khanna were shown the face of the victim by the Applicant and his son Hitesh Chauhan. 2023 SCC OnLine SC 1486 He states that same has been corroborated by the CDR analysis of the mobile numbers used by the said accused persons. He states that CDR analysis shows that the location of mobile numbers 9999937677 being used by Amet Vikram Chhabra, 8929296099 being used by Sahil Kumar, 8860244507 being used by Priyank Khanna and 9873685044 being used by Hitesh Pratap Chauhan reveals that all the accused persons and deceased were present at Jantar Mantar/ Sanchar Bhawan/ Patel Chowk Metro Station from 9.36 AM to 3.58 PM on 31.10.2019.
4.4. He states the Applicant’s son was granted bail vide order dated 14.10.2024 passed by a Co-ordinate Bench of this Court. in BAIL APPLN. 1219/2024 and the said order records that the co-accused Hitesh Chauhan’s counsel categorically contended that mobile phone number 9873685044 was being used by Rishi Raj Pal Singh Chauhan i.e., the Applicant herein. He states, therefore, the plea taken by the Applicant herein that mobile phone number 9873685044 was not being used by the Applicant is incorrect and malafide.
4.5. He states that the medical condition of the Applicant is stable, all the prescribed medicines are being provided to the Applicant from Jail dispensary and further all medical investigations of the Applicant are being ensured through jail dispensary tamer. In this regard, he relies upon the medical status report dated 04.02.2025 prepared by the concerned Jail Superintendent. Findings and Analysis
5. This Court has heard the learned counsels for the parties and perused the record.
6. In the present case, the victim i.e., Sh. Arun Kumar Sharma was kidnapped and murdered in the broad daylight of 15.11.2019 and his dead body was thrown in a canal in Morena, Madhya Pradesh. Considering the disclosures made by the accused persons during the investigation and after making analysis of the CDR between the accused persons, it was revealed that a conspiracy was hatched by the Applicant (as the main conspirator) along with the other five (5) accused persons to kill the victim to overcome the execution proceedings for recovery of an immovable property pursuant to the orders passed by Supreme Court in favour of the deceased/victim.
7. Before delving into the analysis of the facts of this case, it would be apposite to refer to few decisions of the Supreme Court on grant of bail. The Supreme Court in the case of Prasanta Kumar Sarkar v. Ashis Chatterjee[3], State of Uttar Pradesh v. Amarmani Tripathi[4], and Deepak Yadav v. State of Uttar Pradesh[5] has set out the conditions to be considered by Court while granting bail, which are summarized as under: -
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behavior, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
8. In the order passed by the Supreme Court on 27.11.2024 in Special Leave Petition (Criminal) No. 13378 of 2024 titled as X v. State of Rajasthan[6], the Supreme Court made observations vis-à-vis for grant of bail in cases involving serious offenses. The relevant portion of the said order reads as under: -
9. In the present case the trial is in progress and 13 witnesses have already been examined and there is nothing on record to suggest that the trial 2024 SCC OnLine SC 3539 is not progressing. The aforesaid judgment has a direct bearing on the facts of the present case.
10. The Supreme Court in Ishwarji Nagaji Mali v. State of Gujarat[7], while cancelling a bail granted by the High Court, held that merely because the case of the prosecution rests on circumstantial evidence, it cannot be a ground to release the accused person on bail; if material collected during investigation prima facie indicate completion of chain of events, is established. In the said case, the Supreme Court while rejecting the bail to an accused who allegedly hatched a conspiracy with other co-accused to kill his wife, noted as under: - “11. Emphasising on giving brief reasons while granting bail, it is observed by this Court in Ramesh Bhavan Rathod [Ramesh Bhavan Rathod v. Vishanbhai Hirabhai Makwana, (2021) 6 SCC 230: (2021) 2 SCC (Cri) 722] that though it is a well-settled principle that in determining as to whether bail should be granted, the High Court, or for that matter, the Sessions Court deciding an application under Section 439CrPC would not launch upon a detailed evaluation of the facts on merits since a criminal trial is still to take place. It is further observed that however the court granting bail cannot obviate its duty to apply a judicial mind and to record reasons, brief as they may be, for the purpose of deciding whether or not to grant bail. It is observed that the outcome of the application has a significant bearing on the liberty of the accused on one hand as well as the public interest in the due enforcement of criminal justice on the other and the rights of the victims and their families are at stake as well and therefore while granting bail, the court has to apply a judicial mind and record brief reasons for the purpose of deciding whether or not to grant bail. …
14. Therefore, looking to the seriousness of the offence and looking to the nature and gravity of the offence committed by Respondent 2, the High Court ought not to have released Respondent 2 on bail. While releasing Respondent 2 on bail, the
High Court has not at all considered the parameters to be considered while releasing the accused on bail and that too in a serious offence of murder and hatching conspiracy to kill his wife. The impugned order [Lalitbhai Ganpatji Tank v. State of Gujarat, 2021 SCC OnLine Guj 2400] passed by the High Court releasing Respondent 2 cannot be sustained and the same deserves to be quashed and set aside.”
11. In the facts of this case, during the course of the investigation, it has been revealed that Applicant herein is the main conspirator who engaged all the accused persons and hatched a plan in cold blood to kill the deceased/victim. As per the prosecution, the Applicant planned to kill the deceased, so as to enable the Applicant to retain possession of the immovable property even though the deceased has succeeded in the civil litigation up to Supreme Court after following the due process of law. The prosecution has relied upon the disclosure statements made by the Applicant as well as the co-accused which prima facie stands corroborated by the CDR analysis of the mobile phone numbers operated by the accused persons as well as the CCTV footage.
12. The prosecution has alleged that after the deceased was murdered on 15.11.2019, co-accused Hitesh Chauhan had spoken to the co-accused persons on mobile number 9873685044 and demanded to see the dead body to verify that victim had been murdered. The CDR of the mobile number 9873685044 and of the mobile number used by co-accused Amet Vikram Chabra on the date of the offence have been relied upon.
13. Pertinently, Mr. Kanhaiya Singhal, the learned counsel for the Applicant has taken a plea that SIM/mobile number 9873685044 was not operated by the Applicant and therefore, the Applicant cannot be incriminated on basis of the CDR analysis of the said mobile number. However, it is pertinent, that the same counsel (Mr. Kanahiya Singhal) while representing the co-accused Hitesh Chauhan in BAIL APPLN. 1219/2024 has taken a categorical stand that the SIM/mobile number 9873685044 was being used by Applicant/Rishi Raj Pal Singh Chauhan. The said averment of the counsel finds a special mention in the order dated 14.10.2024 passed by a Co-ordinate Bench of this Court in BAIL APPLN. 1219/2024 titled Hitesh Pratap Singh Chauhan v. State NCT of Delhi, whereby, the Applicant’s son i.e., co-accused Hitesh Chauhan was granted bail and in fact this was the main stay of the grant of bail. It would be apposite to reproduce the relevant paragraph nos. 14, 18 and 20 of the judgment dated 14.10.2024, as under: - “14. Counsel for the petitioner categorically states that he differentiates the case from his father since it was a case of joint recovery at best and nothing which has come on record would show that the suspect SIM was being used by the petitioner rather than the father. …
18. As per the Status Report, the suspect SIM was revealed through the phone of Chetan Chauhan, brother of the petitioner and where it was stored as “Daddy.” Therefore, the petitioner’s counsel states that it becomes quite clear that the phone was being used by Rishi Raj Pal Singh Chauhan, the father of the petitioner and Chetan Chauhan. …
20. It is highlighted by the counsel for the petitioner that his case is different from the case of his father Rishi Raj Pal Singh Chauhan. His contentions have been appreciated specifically in that context.”
14. The Applicant and his son Mr. Hitesh Chauhan are co-accused and SIM/mobile number 9873685044 was allegedly seized in a joint recovery. The Applicant and his son Hitesh Chauhan are both represented by the same counsel in this trial. The co-accused Hitesh Chauhan while arguing BAIL APPLN. 1219/2024 has categorically asserted that SIM/mobile number 9873685044 was being used by the Applicant herein and secured the regular bail on this basis. Thus, at this stage while considering bail application the aforesaid submissions of co-accused Hitesh Chauhan recorded in order dated 14.10.2024 lead this Court to prima facie believe the case of the prosecution that it was the Applicant who was in communication with the co-accused persons on 31.10.2019 the date of recce for preparation of the crime and 15.11.2019 the date of the commission of murder. Needless to state that the Trial Court will decide this issue finally after prosecution evidence and statements of the accused has been recorded.
15. The legal strategy of securing a bail for co-accused Hitesh Chauhan by making a concession that SIM/mobile number 9873685044 used in the commission of offence, was in fact being used by the Applicant led to passing of the order dated 14.10.2024 granting regular bail to co-accused Hitesh; and on the basis of the said order dated 14.10.2024 bail was secured for the other three (3) co-accused from the Trial Court between 18.10.2024 to 12.11.2024. And, now on the basis of the said bail orders secured by the said four (4) co-accused bail is being sought for the Applicant herein, which plea is without any merits as the role of the Applicant is distinct from the coaccused and he has been identified as the main conspirator of the heinous offence which is under trial. However, the Co-ordinate Bench while granting bail to co-accused Hitesh Chauhan has specifically recorded at paragraph 20 (reproduced above) that the case of the Applicant herein is distinct from coaccused Hitesh Chauhan. Thus, the fact that there is no parity between the Applicant and the co-accused including Hitesh Chauhan is noticed in the order of the Co-ordinate Bench itself.
16. Similarly, in the case of the co-accused Harsh Chhabra[8], the Coordinate Bench while granting bail noted that the conspiracy to kill the deceased was hatched by the Applicant herein and the murder was committed at his instance. The relevant paragraph nos. 27, 28 and 29 of the judgment dated 02.04.2024 reads as under: - “27. The motive attributed to the petitioner is that the petitioner with the main accused Rishi Raj Pal Singh had hatched a plan to kill the deceased, who had succeeded in a litigation related to a property, against the said main accused, up to the Supreme Court of India and was prosecuting the execution proceedings in the Court at Gurugram. Thus, there is no direct motive attributed to the petitioner.
28. The case of the prosecution against the petitioner is that he was hired by the main accused to eliminate the deceased. However, the case of the prosecution was initially against five accused persons namely, Rishi Rajpal Singh Chauhan, Hitesh Pratap Chauhan, Amet Vikram Chhabra, Priyank Khanna and Sahil Kumar.
29. It is not the case of the prosecution that the petitioner was directly involved in the execution of murder or in the crime of disposal of dead body of the deceased.”
17. The co-accused persons Hitesh Chauhan, Amet Vikram Chhabra, Sahil Kumar and Priyank Khanna have while seeking regular bail persuaded the Court to believe that the main conspirator is the Applicant/Rishi Raj Pal Singh Chauhan and pointed fingers at the Applicant. Similarly, the coaccused Harsh Chhabra has also pointed fingers at the Applicant herein. In these facts, the plea of parity raised by the Applicant for seeking regular bail is without any merits.
18. With regard to the contention of the Applicant regarding his medical condition, this Court has perused the medical status report dated 04.02.2025 Judgment dated 02.04.2024 in BAIL APPLN. 3689/2022 titled Harsh Chhabra v. State NCT of Delhi placed on record and is satisfied that the Applicant’s health is stable and being monitored by the Jail authorities in a timely manner.
19. Looking to the seriousness of the offence and looking to the nature and gravity of the offence committed by the Applicant/accused and keeping in view the dicta of Supreme Court in X v. State of Rajasthan (Supra), the Court is of the opinion that the Applicant is not entitled to regular bail. The bail application is accordingly dismissed.
20. However, keeping in view that the offence is of the year 2019 and five (5) years have passed since and trial is already at the stage of recording of prosecution evidence, the learned Trial Court is requested to not grant any unnecessary adjournment to either parties and complete recording of evidence in a timely manner as per its seniority and Court Calendar. This would not only serve the interest of the society, the family of the victim but also the accused who are facing trial.
21. Needless to state, but any observation touching the merits of the case is purely for the purposes of deciding the question of grant of bail and shall not be construed as an expression on merits of the matter. website of the Delhi High Court, www.delhihighcourt.nic.in, shall be treated as a certified copy of the order for purpose of ensuring compliance. No physical copy of order shall be insisted by any authority/entity or litigant.