The Single Bench of the Delhi High Court in the case of Ashwani Kumar vs State consisting of Justice Amit Mahajan while dealing with a bail application held that the order of bail in anticipation of arrest cannot be granted for it to be used as a shield.
Facts and Procedural History:
This petition was filed for grant of pre-arrest bail in an FIR u/s 419/420/468/471/120B/34 of IPC & Section 66 C & D of the Information Technology Act, 2000 (IT Act) at police station Special Cell, New Delhi.
The complaint was registered on secret information that a fake call centre was involved in large-scale cyber cheating with US citizens on the pretext of misuse of the Social Society Number (SSN) of the citizens of the United States. A raid was conducted and 54 accused were apprehended from the call centre along with other incriminating evidence from the premises. It was alleged by the accused persons that the owner of the call centre is the applicant who was actively involved in the scam. The complete racket of cheating and impersonation with US citizens was run by the applicant along with other co-accused who were managing on behalf of the applicant.
Contentions Made:
Petitioner: It was contended that the only fault of the applicant was that he was the owner of the property from where the alleged fake call centre was run.
Respondent: It was contended that not only the applicant but also the other co-accused persons were absconding and wilfully evading to join the investigation. The applicant was missing, and Section 82 proceedings had been initiated. Moreover, the allegation involved large-scale cheating of foreign nationals. The calls were made to US citizens impersonating Social Security Administration Department, USA officers. Such a person, if granted bail, would tarnish the image of our country.
Observations of the Court:
The Bench noted that the applicant was, admittedly, the owner of the property from where the call centre was being run which was used to commit a crime. He was stated to be the kingpin of the entire fraud.
It further noted that before the filing of the present application, an application u/s 438 of Code of Criminal Procedure, 1973 (Cr. P.C) was filed before the Court of learned ASJ, which was dismissed noting that the custodial interrogation of the applicant was required to unearth the conspiracy and that the direct evidence to conspiracy is seldom found.
It also noted that though it is claimed that the property was given to the said tenant on rent, the only evidence, at this stage, was that an advance rent for two months was received in cash. No banking transaction was found to have been entered into with the said alleged tenant. It was also pointed out in the status report that the property, the address of which is allegedly shown by the said tenant is owned by one Mr. Vijender Singh Thakur, who stayed in the said property and had purchased the same on 29.12.2006. Moreover, the claim of the applicant that he had not joined the investigation on account of not being available in the country was found to be incorrect.
It further opined protection would be detrimental to investigate this case without a free hand to the Investigating officer on certain crucial aspects of the case. Relying on CBI vs Anil Sharma it noted that the interrogation of an accused, while in custody, is qualitatively different from that undertaken while the accused is enjoying protection under an order of a Court against his arrest.
The decision of the Court:
Keeping in mind the nature of the allegations, and the fact that the applicant has not joined and cooperated in the investigation which has also led to the initiation of proceedings u/s 82 of CrPC, this Court deemed this case not fit for the exercise of discretion u/s 438 of Cr.P.C. The application was, therefore, dismissed. It was, however, made clear that any observations made in this order were only for deciding this application and should not influence the outcome of the trial.
Case: Ashwani Kumar vs State
Coram: Justice Amit Mahajan
Case No: BAIL APPLN. 3077/2022, decided on 30th December 2022
Advocates for Petitioner: Mr. R.K. Tarun, Mr. Rohit Shukla & Mr. Abhay Solanki.
Advocate for Respondents: Ms. Richa Dhawan, APP.
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