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Bail Application No. 140/2013 Page 1 HIGH COURT OF DELHI
BAIL APPLN. 140/2013
PAWAN KUMAR @ PAWAN KUMAR AGGARWAL..... Petitioner
Through: Mr. Vikas Goyal, Advocate
BAIL APPLN. 140/2013
PAWAN KUMAR @ PAWAN KUMAR AGGARWAL..... Petitioner
Through: Mr. Vikas Goyal, Advocate
VERSUS
STATE ..... Respondent
Through: Mr. Sunil Sharma, Additional Public Prosecutor for State
Through: Mr. Sunil Sharma, Additional Public Prosecutor for State
CORAM:
HON'BLE MR. JUSTICE SUNIL GAUR O R D E R 30.01.2013
Crl.M.A. No.1109/2013 (u/S 482 Cr.P.C.)
Allowed, subject to all just exceptions.
Bail application No. 140/2013 & Crl. M.B. No. 203/2013 (u/S 482
Cr.P.C.)
In an offence of cheating to the tune of `50lacs in FIR NO. 397/2012, under Sections 420/406/468/471/411/120-B of the IPC, registered at Police Station Samaipur Badli, Delhi petitioner seeks pre arrest bail.
Learned counsel for petitioner asserts that petitioner is doing his own business and had been purchasing material and selling them in the
2013:DHC:481 Bail Application No. 140/2013 Page 2 market and had been regularly making payments. Documents and bills relied upon in this respect are annexed as Annexure-A (colly).
During a raid conducted at his godown, twenty containers of washable distemper were recovered, as his co-accused had disclosed that they had been siphoning off the goods obtained from various complainants to petitioner. Pre-arrest bail has been declined to petitioner by learned Additional Sessions Judge vide order of 24th December, 2012 wherein not only the factual position is noted but the submissions advanced by both sides have been noticed and have been reiterated before this Court.
Petitioner’s counsel asserts that for merely effecting the recovery, pre-arrest bail ought not be declined to him, as he is ready to join and cooperate with the investigation of this case and so, interim protection be granted to him.
On the other hand, Mr. Sunil Sharma, learned Additional Public
Prosecutor for respondent-State submits that the case of petitioner is of total denial and to find out the truth, custodial investigation of petitioner is required and so, pre-arrest bail ought not be granted to petitioner.
Apex Court in Jai Prakash Singh Vs. State of Bihar (2012) 4 SCC
379 has reiterated parameters, which are to be taken into consideration while dealing with the anticipatory bail application, which are as under:-
“(i) the nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) the antecedents of the applicant including the fact as to whether the accused has previously undergone
Bail Application No. 140/2013 Page 3 imprisonment on conviction by a court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice;
(iv) the possibility of the accused's likelihood to repeat similar or [the] other offences;
(v) where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) the courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case.
The cases in which the accused is implicated with the help of
Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;
(viii) while considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) the court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”
The pertinent observations made by Apex Court in Jai Prakash
(Supra) are as under:- Bail Application No. 140/2013 Page 4
“19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty.”
Since charge-sheet against co-accused in this case has been filed and on its bare perusal and the impugned order, prima facie involvement of petitioner is quite apparent and so his custodial interrogation is essential, therefore in view of the nature of offence purportedly committed, this Court is not inclined to grant pre-arrest bail to petitioner.
This application is dismissed with direction to respondent –State to forthwith take petitioner into custody. However, it is made clear that as and when petitioner seeks regular bail, the same would be considered by the court concerned uninfluenced by this Order, as opinion expressed herein is just tentative.
(SUNIL GAUR)
JUDGE
JANUARY 30, 2013 rs
Crl.M.A. No.1109/2013 (u/S 482 Cr.P.C.)
Allowed, subject to all just exceptions.
Bail application No. 140/2013 & Crl. M.B. No. 203/2013 (u/S 482
Cr.P.C.)
In an offence of cheating to the tune of `50lacs in FIR NO. 397/2012, under Sections 420/406/468/471/411/120-B of the IPC, registered at Police Station Samaipur Badli, Delhi petitioner seeks pre arrest bail.
Learned counsel for petitioner asserts that petitioner is doing his own business and had been purchasing material and selling them in the
2013:DHC:481 Bail Application No. 140/2013 Page 2 market and had been regularly making payments. Documents and bills relied upon in this respect are annexed as Annexure-A (colly).
During a raid conducted at his godown, twenty containers of washable distemper were recovered, as his co-accused had disclosed that they had been siphoning off the goods obtained from various complainants to petitioner. Pre-arrest bail has been declined to petitioner by learned Additional Sessions Judge vide order of 24th December, 2012 wherein not only the factual position is noted but the submissions advanced by both sides have been noticed and have been reiterated before this Court.
Petitioner’s counsel asserts that for merely effecting the recovery, pre-arrest bail ought not be declined to him, as he is ready to join and cooperate with the investigation of this case and so, interim protection be granted to him.
On the other hand, Mr. Sunil Sharma, learned Additional Public
Prosecutor for respondent-State submits that the case of petitioner is of total denial and to find out the truth, custodial investigation of petitioner is required and so, pre-arrest bail ought not be granted to petitioner.
Apex Court in Jai Prakash Singh Vs. State of Bihar (2012) 4 SCC
379 has reiterated parameters, which are to be taken into consideration while dealing with the anticipatory bail application, which are as under:-
“(i) the nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) the antecedents of the applicant including the fact as to whether the accused has previously undergone
Bail Application No. 140/2013 Page 3 imprisonment on conviction by a court in respect of any cognizable offence;
(iii) the possibility of the applicant to flee from justice;
(iv) the possibility of the accused's likelihood to repeat similar or [the] other offences;
(v) where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) the courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case.
The cases in which the accused is implicated with the help of
Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because overimplication in the cases is a matter of common knowledge and concern;
(viii) while considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) the court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”
The pertinent observations made by Apex Court in Jai Prakash
(Supra) are as under:- Bail Application No. 140/2013 Page 4
“19. Parameters for grant of anticipatory bail in a serious offence are required to be satisfied and further while granting such relief, the court must record the reasons therefor. Anticipatory bail can be granted only in exceptional circumstances where the court is prima facie of the view that the applicant has falsely been enroped in the crime and would not misuse his liberty.”
Since charge-sheet against co-accused in this case has been filed and on its bare perusal and the impugned order, prima facie involvement of petitioner is quite apparent and so his custodial interrogation is essential, therefore in view of the nature of offence purportedly committed, this Court is not inclined to grant pre-arrest bail to petitioner.
This application is dismissed with direction to respondent –State to forthwith take petitioner into custody. However, it is made clear that as and when petitioner seeks regular bail, the same would be considered by the court concerned uninfluenced by this Order, as opinion expressed herein is just tentative.
(SUNIL GAUR)
JUDGE
JANUARY 30, 2013 rs
JUDGMENT