TMI Blog2018 (6) TMI 1709X X X X Extracts X X X X X X X X Extracts X X X X ..... l, subject to his furnishing security to the tune of ₹ 1 lakh, along with two solvent sureties of like amount, to the satisfaction of the learned Trial Court - the release shall be subject to various conditions imposed. Bail application disposed off. - BAIL APPLN. 401/2018, 752/2018, 1332/2018 - - - Dated:- 20-6-2018 - Mr. C.hari Shankar, J. Mr Jaspreet Singh Rai, Adv. Mr. Janender Kumar Chumbak, Mr. Jayant K. Sud, Mr. Amit Tiwari and Mr. Honey Khanna, Mr. Ashwin Vaish and Mr. Kunal Awana For The Petitioner. Ms. Manjeet Arya For The Respondent. JUDGMENT C. Hari Shankar, 1. These are applications for regular bail, filed by the accused in FIR No. 495/2017 dated 16th September, 2017, registered at PS Punjabi Bagh. 2. Consequent on investigations pursuant to the aforementioned FIR, charge sheet, dated 21st December, 2017, was filed before the learned Metropolitan Magistrate (hereinafter referred to as the learned MM ), Tis Hazari Courts. 3. In order to appreciate the nature of the case, as was sought to be built up by the prosecution against the three applicants, it would be apposite to set out the facts, as recited / alleged in the charge s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he stated, was also in possession of a letter, written by Pooja, containing allegations against the complainant. Though Harish Tiwari, at that time, said that Ramphal would be the last extortionist, he, later, again approached the complainant, stating that Ashok Sagar wanted more money. The complaint went on to give details of the only lady named Pooja, of whom the complainant was aware, who was the ex. wife of one J. D. Gupta. The complainant categorically denied having any illicit relationship with Pooja, and stated that he had, over the aforementioned period of twelve to thirteen years, been subjected to repeated blackmail and extortion, by Harish Tiwari and his confederates including Ashok Sagar, Subhash Sharma and others. In the circumstances, the complaint extorted the police authorities to protect the complainant, who was a man of advanced years suffering from various physical ailments, and to proceed, in law, against the aforementioned blackmailers/extortionists. 5. On the basis of the aforementioned complaint, FIR No. 495/2017, dated 16th September, 2017, was registered, at PS Punjabi Bagh, under Sections 384, 389 and 411 read with Sections 120-B and 34 of the Indian P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aining the audio recording of the meeting between them, (iv) a pen drive containing a copy of all voice calls and audio and video recordings, and (v) written transcript of all recordings. 10. On 27th October, 2017, the complainant informed the police that, on that day, an unknown person had informed his driver Lalit Rai that Harish Tiwari and Ashok Sagar were to be paid extortion money at the residence of Harish Tiwari. The police team, thereupon, proceeded, with Lalit Rai, to the resident of Harish Tiwari, where Harish Tiwari and Ashok Sagar were present, waiting for money. Lalit Rai went inside, with the extortion money, consisting of two bundles of ₹ 2 lakhs each, of which the last note of each bundle was signed by the complainant. Before Lalit Rai could alert the police team waiting outside, Harish Tiwari and Ashok Sagar received the money and sped away from the spot in two cars. The police chased them, and managed to intercept them in the hotel room, where they were arrested, their disclosure statements recorded and the extortion money recovered from them. Harish Tiwari, in his disclosure statement, also incriminated Harish @ Baba Vashishth, Vishal Vashishth, J. D. Gu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erred to as the FSL ) along with the spy camera, mobile, pen drive, etc. The photographs recovered from the afore-mentioned accused were also sent to the FSL for expert opinion. The result of these tests, it was stated, was awaited. 16. The charge-sheet further alleged that the drivers/helpers of the complainant, namely, Lalit Rai, Lalit Anand @ Lucky and Ram Kishan Rai @ Raju, corroborated the statements of the complainant, and named Harish Tiwari, Ashok Sagar, Subhash Sharma, P. C. Sharma, and Naresh Chaubey, Vishal Vashishth, etc. 17. It was further alleged that the Call Detail Records (CDRs), prepared during investigation, disclosed that Harish Tiwari was in constant touch with the other conspirators, such as Naresh Chaubey, Subhash Sharma, and Ashok Sagar. 18. On the basis of the above evidence, the charge-sheet alleged that the allegation, of the complainant, that he had been subjected to repeated extortion, involving a total amount of ₹ 10 crores, over a period of twelve to thirteen years, stood proved, and that, out of the said sum, ₹ 5 lakhs had in fact been recovered. This, it was stated, indicated that Harish Tiwari, Ashok Sagar, Naresh Chaubey and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er Sections 38/389/120-B and 34 of the IPC. 21. For the sake of completion of the recitation of facts, it may be noted that the applicants moved applications for regular bail, which were rejected by the learned ASJ, essentially in view of the stage at which the investigations stand. Further, the applicants also challenged the framing of charges, against them, which challenges also stand rejected, by the learned MM, vide order dated 31st May, 2018. Rival Contentions 22. Arguments, on behalf of Ashok Sagar, were advanced by learned counsel Mr. Jaspreet Singh Rai. Mr. Rai contends that the FIR/complaint, of the complainant, having been filed 13 years after the alleged extortion commenced, did not commend confidence, and that there was no reference, in the FIR, to any payment having been directly made to his client. He draws pointed attention to the fact that the total payment figure of ₹ 10 to 12 lakhs, which found place in the FIR, stood mysteriously enhanced to ₹ 10 crores, in the charge-sheet, without any basis, whatsoever, for the said enhancement. He also relies on the statement of Pooja, recorded under Section 164 of the Cr.P.C., in which she clearly said th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mplainant, and was sought to be roped in only by virtue of Section 120-B of the IPC. He points out that Section 411 of the IPC had not been invoked against his client, and submits that it was admitted position that his client was not a participant in the alleged extortion of money from the complainant. He points out that the complainant himself admitted having never talked to his client, or met him. He emphasises the fact that his client refused to sign the disclosure statement, and presses, especially into service, the fact that, while his client sought for a TIP, it was the I/O who opposed the request. He submitted that his client did not know any of the co-accused in the case. He also submitted that the complainant, too, had not alleged receipt of any extortion money by his client. He questions the invocation, against his client, of Section 120-B of the IPC, by contending that the sine qua non, for conspiracy, was meeting of minds, and, in the absence of any date, or time, when his client met the other co-accused in the case, such meeting of minds was well-nigh impossible. He submits that his client has, by now, remained in custody for over 5 months, and that further incarcerati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , (1980) 2 SCC 565 (by a Constitution Bench) and Gudikanti Narasimhulu vs. Public Prosecutor, High Court of A.P., (1978) 1 SCC 240. Gurbaksh Singh Sibbia (supra) quoted, with approval, the time-tested observations, of the High Court of Calcutta in In re. Nagendra Nath Chakravarti, AIR 1924 Cal 476, to the effect that the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that a bail could not be withheld as a punishment . Gudikanti Narsimhulu (supra) relied, approvingly, on the following passage, from American Jurisprudence (II) Vol. 8, P806, para 39: Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge-sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. 31. Dataram Singh (supra) was relied upon, by a three-Judge Bench of the Supreme Court, in a still more recent decision in X vs State of Telangana, 2018 SCC Online SC 549, paras 12 and 13 whereof read thus: 12. In Neeru Yadav vs State of U.P., (2016) 15 SCC 422, applying the same principle, this Court held that: It is a well-settled principle of law that while dealing with an application for grant of bail, it is the duty of the Court to take into consideration certain factors and they basically are: (i) the nature of accusation and the severity of punishment in cases of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses for apprehension of threat to the complainant, and (iii) prima facie satisfaction of the Court in support of the charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , thus: 21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. 22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, necessity is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be depriv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case.‟ 40. The grant or refusal to grant bail lies within the discretion of the court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the court, whether before or after conviction, to assure that he will submit to the jurisdiction of the court and be in attendance thereon whenever his presence is required. 42. When the undertrial prisoners are detained in jail custody to an indefinite period, Article 21 of the Constitution is violated. Every person, detained or arrested, is entitled to speedy trial, the question is: whether the same is possible in the present case. (Emphasis supplied) Resultant legal position 35. Authorities on bail, and the jurisprudence relating thereto, are in overabundance, and it is hardly necessary to multiply r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd suspension of sentence. Inasmuch as the applicant, in a bail application, has yet to be found guilty of the offence with which he is charged, the significance of the nature of the offence stand substantially reduced, while examining the application for bail. Courts have to be alive to the legal position underscored in the very first paragraph of Dataram Singh (supra) that every accused is presumed to be innocent until proved guilty. (v) Where, however, the material against the accused is so insubstantial that the court feels that his conviction, in the ultimate eventuate, appears remote, the court can legitimately arrive at a conclusion that, as the accused is highly unlikely to ultimately suffer conviction, his incarceration during trial, would be unjustified. (vi) Having said that, the decisions cited hereinabove reveal that the Supreme Court has, in certain cases, treated the seriousness of the offence alleged against the accused seeking bail, to be a relevant consideration while examining the merit of his application. While it may be true that, in extremely gross cases, the advisability of allowing the accused to roam at large, during the course of his trial, may b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the alleged extortionists/blackmailers, named by the complainant or by the witnesses, are yet to be traced and apprehended. Ashok Sagar 38. Ashok Sagar has, in his bail application, emphasised, apart from the submissions advanced by his counsel, to which allusion has already been made hereinabove, the fact that he had cooperated with the investigation throughout, and was a resident of Delhi, with a wife, a two-year old daughter and aged parents, and was the sole breadearner of the family. The Status Report, filed by the Police authorities, essentially refer to the evidences available against Ashok Sagar, and the fact that several co-accused are yet to be arrested, and investigation, regarding accounts and investment of extorted money in various properties, was still going on. These are, at best, vague averments, bereft of particulars. Besides these, it is contended, as a ground for opposing the request of Ashok Sagar for bail, that efforts were still on to recover the doctored CD on the basis of the analysis of the CDR of Ashok Sagar, and that his release may lead to destruction of said CD/evidences . This, again, is entirely presumptive. Apart from these, it is merely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat he is a lawyer with over 20 years‟ experience at the bar, and is a permanent resident of Delhi. It is further averred that he has a wife and two school going children, and is the sole bread-earner of the family. It is further urged that he cooperated during the Police Remand, and consented to the recording of his voice sample which, too, stands concluded. Attention has been drawn, further, to his release, on interim bail, by the learned ASJ, submitting that he neither sought to influence any witness during the currency of the said bail, nor defaulted in surrendering, immediately on his request for extension of interim bail being rejected. This, it is asserted, indicates that he would abide by the directions issued by this Hon'ble Court. 42. As against this, the Status Report filed by the prosecution, besides highlighting the specific role attributed to Harish Tiwari by the complainant, and the evidence against him, alleges that, during the period of three weeks for which he had been granted interim bail, Lalit Rai, the driver of the complainant, lodged a complaint against an unknown person, allegedly sent by Harish Tiwari, who offered him cash and a handsome job, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been enmeshed in three cases, involving Sections 419, 420, 467 and 468 of the IPC in conjunction with Sections 13(1)(d) and 13 (2) of the Prevention of Corruption Act. Further, while being wealthy is, in itself, obviously no offence, the list of properties stated to have been purchased by him, over a period of twelve to thirteen years, during which he is stated to have been practicing as an advocate, viewed in the light of the aforementioned cases, in which he is involved, does not inspire this court to readily believe that, if enlarged at this stage, he would do nothing to impede the due course of the investigation or trial. Assimilation of evidence is as yet incomplete, and several of the co-accused have yet to be intercepted or arrested. Without intending this, therefore, to be an expression of opinion, regarding the possibility of the investigation, and trial, being affected by enlargement of Harish Tiwari on bail at this juncture, I am unable to persuade myself regarding the advisability of such a course of action. There is also an allegation that, during the period for which he was enlarged on interim bail, an attempt was made, by someone purporting to act on behalf of Haris ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of money from the complainant, are yet to be traced, and investigation, as well as trial, are at a nascent stage. This Court cannot be party to an order which could result, in any manner, in putting roadblocks in the way of the investigation, which still has some way to go. 47. In the opinion of this Court, therefore, Subhash Sharma cannot be said to have made out a case meriting his enlargement, on bail, at this juncture. Conclusion 48. In the result, Bail Application 752/2018, of Harish Tiwari, and Bail Application 1332/2018, of Subhash Sharma, are rejected. Bail Application 401/2018, of Ashok Sagar, is allowed, and he is directed to be released on bail, subject to his furnishing security to the tune of ₹ 1 lakh, along with two solvent sureties of like amount, to the satisfaction of the learned Trial Court. His release shall be subject to the following conditions: (i) He is restrained from leaving the city, without permission from the leaned Trial Court, during the currency of trial. (ii) He shall surrender his passport, at the Punjabi Bagh Police Station, forthwith. , His passport will remain in the custody of the Police authorities, pending further orders, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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