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HIGH COURT OF DELHI
JUDGMENT
MUKESH KUMAR ..... Applicant
For the Appellant : Mr. Gautam Sharma, Advocate.
For the Respondent : Ms. Priyanka Dalal, APP for the State alongwith Inspector Ravi Kumar, PS
Alipur.
Mr. Mohit Mathur, Senior Advocate with Mr. Narender Mann for complainant.
1. The present bail application has been filed under Section 438 Cr.P.C. on behalf of the applicant praying, inter alia, for the grant of pre-arrest bail in FIR No. 187/2022 dated 15.03.2022 registered under Sections 420 and 406 of the Indian Penal Code, 1860 (“IPC”) at Police Station Alipur, New Delhi, submitting to the effect that he has been falsely implicated in the instant case and has no role concerning the allegations in the FIR.
2. The FIR was registered on 15.03.2022 subsequent to filing of a complaint under Section 200 of Cr.P.C, alleging that the complainant has been duped for a sum of Rs. 4.[5] lakhs by the present applicant.
3. It was alleged that the present applicant came in contact with the complainant with the oblique motive to dishonestly deceive him, following the assurances and the promise to procure the job of a lab assistant since the complainant failed to pass the Service Selection Board exam and sought help from the applicant. In lieu of the aforesaid, the applicant demanded a sum of Rs 5 lakhs and settled for Rs 4.[5] lakhs, which was given to the applicant on 05.09.2021. The said promise was not fulfilled by the applicant and, thereby, the applicant defrauded the complainant of the same.
4. The applicant apprehending the arrest, moved the learned Sessions Court for the grant of pre-arrest bail, and by the order dated 02.06.2022, the learned Additional Sessions Judge dismissed the said bail application which led to filing of the present application.
5. It is submitted by learned counsel for the applicant that no offence whatsoever is made out and the complainant has falsely implicated him.
6. He submits that the applicant is a Central Government Employee, working as an Assistant Communication Officer in Indo Tibetan Border Police (ITBP) under the Ministry of Home Affairs for the last 15 years.
7. He submits that the applicant did not know the complainant directly, and it was through the uncle of the complainant, Prakash, that he came in contact with the complainant.
8. He further urges that Mr. Prakash had a grudge against the applicant and after he, along with the complainant, failed to malign the social image of the applicant by making complaints before various authorities, got the instant FIR registered, alleging that the applicant defrauded the complainant to the amount of Rs 4.[5] lakhs in furtherance of the promise to procure the job of Lab Assistant for him since he was unable to pass the exam of Service Selection Board, Rajasthan for the direct recruitment of Lab Assistant.
9. He further submits that in addition to the fact that the applicant left his office at around 8:15 am on 04.09.2021 and was visiting his native village, namely Ajab Pura, Alwar, Rajasthan, on 05.09.2021, he neither made any demand nor received any money from the complainant.
10. Learned counsel submits that there has been a substantial delay of approximately five months in the registration of the FIR, and the complaints made by the complainant bear several incongruities.
11. The learned APP for the State, assisted by the learned senior counsel for the complainant, has vehemently opposed the present bail application.
12. They submitted that the Service Selection Board, Rajasthan, announced approximately 12000 vacancies for the direct recruitment of Lab assistants in 2018 and that the complainant took the corresponding exam but failed it.
13. The complainant, aggrieved by the result, came in contact with the present applicant seeking help. Apart from enticing the complainant to procure a job of Lab Assistant, the applicant settled for an amount of Rs. 4.[5] lakhs in exchange for the same. The complainant paid the said amount on 05.09.2021 to the present applicant. However, the applicant neither arranged the alleged job nor refunded the said amount and had started extending threats of dire consequences to the complainant.
14. Learned counsel further relies on the reply to the notice u/s 91, sent to the Director, Directorate of Co-ordination Police Wireless, CGO Complex, Block-9, New Delhi, wherein it was stated that the applicant was on weekly off on 05.09.2021 and his phone was also switched off.
15. The status report submitted by the respondent indicates that a video clip taken on 08.05.2022, which the complainant provided during the investigation, showcases the applicant accepting that he had taken advances from the complainant and returned Rs. One lakh, however, four lakhs were still pending to be returned.
16. Learned APP also submits that the applicant has also similarly cheated several other unemployed persons, and to corroborate the said contention, Gurudayal Gurjar, S/o Sh. Sultan Gurjar R/o Kakrana Bada Kuhada, Virat Nagar, Jaipur, Rajasthan, and Joginder S/o Jaswant Singh R/o H. No. 786, Harmukh Pana, Pooth Khurd, Delhi were examined who stated that the present applicant had also cheated them with the same modus operandi. Conclusion
17. A perusal of the record reveals that the applicant i.e., Mukesh Kumar was granted interim protection from arrest during the pendency of the present bail application by this Court by order dated 10.06.2022.
18. It is pertinent to consider the factors the Courts must contemplate while dealing with such applications.
19. In the case of Siddharam Satlingappa Mhetre v. State of Maharashtra: (2011) 1 SCC 694, the Hon'ble Supreme Court dealt with the issue of anticipatory bail, and the balance that needs to be maintained while granting the same to an accused and further laid down the factors that must be taken into consideration while granting anticipatory bail and held as under: “…112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: 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 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 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 over implication 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…”
20. In the instant case, the offence of cheating and dishonestly inducing delivery of property and criminal breach of trust have been alleged. The allegation is solely based on the complaint and cannot be stated at this stage, to be corroborated with any material of unimpeachable nature. Secondly, there has been a substantial delay of more than five months in the registration of the FIR. Thirdly, the applicant was granted interim relief by this Court on 10.06.2022. It is not the case of the prosecution that the applicant has not cooperated with the investigation after grant of interim relief. Lastly, the applicant is willing to cooperate with the investigation.
21. Even though, it is alleged that the applicant had also cheated other persons, however, it is not denied that no complaint has been lodged with any of the authorities regarding the same.
22. It is not in doubt that order for grant of bail cannot be passed in a routine manner so as to allow the accused to use the same as a shield. At the same time, it cannot be denied that great amount of humiliation and disgrace is attached with the arrest. In cases where the accused has joined investigation, cooperating with the Investigating Agency and is not likely to abscond, the custodial interrogation should be avoided.
23. The purpose of custodial interrogation is to aid the investigation and is not punitive. In the present case, it is not denied that the accused is a Government Servant and is not at flight risk.
24. From the perusal of the Status Report, it appears that the investigation is complete to a large extent and does not require the applicant to be in custodial interrogation for the purpose of Investigating Agency to complete the remaining investigation, if any.
25. The allegations and counter allegations would be tested during the course of trial and, at this stage, cannot be said to be totally true or untrue. The allegation, at this stage, are solely based on the statement made by the complainant. The argument made on behalf of the applicant that he has been falsely implicated, at this stage, cannot be ruled out and would be a matter of trial.\
26. There are no chances of the applicant fleeing from justice or tampering with evidence.
27. The apprehension, even otherwise, can be taken care of by putting appropriate conditions.
28. In view of the aforementioned facts, circumstances, analysis, and reasoning, as well as keeping in mind the legal position and the prayer made by the applicant, this Court is persuaded to allow the instant pre-arrest bail application bearing number 1823/2022.
29. It is directed that the applicant, in the event of arrest, be released on bail on furnishing a bail bond for a sum of ₹50,000/with one surety of the like amount to the satisfaction of the concerned SHO, subject to the following conditions:
(i) The applicant shall join and cooperate with the investigation as and when directed by the IO; (ii)The applicant shall not leave the city without informing the IO/ SHO concerned; (iii)The applicant shall not contact the complainant or tamper with the evidence in any manner; (iv)The applicant shall give his mobile number to the concerned IO/SHO and shall keep his mobile phone switched on at all times;
30. The State is at liberty to file an application for cancellation of the bail in case the applicant is found to be violating any of the conditions mentioned above.
31. It is made clear that the observations made herein while disposing of the instant bail applications shall have no bearing whatsoever on the merits of the case during trial.
32. The application is allowed in the above terms. AMIT MAHAJAN, J MARCH 3, 2023