Vinay Kumar & Anr. vs State Of Nct Of Delhi
2009 Latest Caselaw 5255 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                   CRL.M.C. NO. 3922/2009

                                           Reserved on : 24.11.2009
                                       Date of Decision : 16.12.2009

VINAY KUMAR & ANR.                                ......Petitioners
                               Through:     Mr.G.P.Singh, Advocate.

                                Versus

STATE OF NCT OF DELHI                         ...... Respondent
                               Through:     Mr.Pawan Bahl, APP for
                                            the State.

CORAM :
HON'BLE MR. JUSTICE V.K. SHALI

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                   YES
2.     To be referred to the Reporter or not ?        NO
3.     Whether the judgment should be reported
       in the Digest ?                                NO

V.K. SHALI, J.

1. The petitioner by virtue of the present petition has sought

the following three reliefs:-

"(A) Setting aside the following part of the impugned order dated 7.11.2009 passed by the District Judge (West) Ms. Pratibha Rani in Bail Application No.(Nil) dated 29.10.2009 titled "Vinay Kumar and Anr. v. State":

"If the present application is considered to be under Section 439 Cr.P.C., the case of the prosecution is that the promoters namely Vinay Kumar, Shabad Ansari, Sajid Jabbar and Anand Shanker adopted a very unique modus operandi for siphoning of the major amounts as commission from the alleged company M/s B.K.Jewellery House marketing Pvt. Ltd. And as per this strategy, the

initial approximately 1008 ID's were kept by the Directors, promoters, and their associated for themselves and thereupon the general public was made to join different schemes as revealed by the website developer and by adopting this modus operandi, the major profits, incentives etc were kept which had come on these ID's and that the Directors, promoters and their associates were well aware that the schemes were not feasible and successful but they continued to make promises to the victims for high yield and bonuses. The detailed report regarding the evidence available against the present applicants had also been mentioned in the report. In view of the gravity of the offence, the amount involved, the manner in which the offence was committed and the role attributed to the present applicants, I do not find it to be a fit case to enlarge the applicants, on bail. Prayer rejected."

(B) To mark the bail application no.4024/2009 to a Court other than the court presided over by Ms. Pratibha Rani, District Judge(West) for the reason that she has already expressed her aforesaid opinion on merits.

(C) Passing such further order(s) as this Hon‟ble Court may deem fit and proper in the light of the facts and circumstances of the present case."

2. Briefly stated the facts of the case are that FIR No.62/2009

was registered u/s 420/406/120B IPC read with Section

4/5/6 of the Price Chit and Money Circulations Schemes

(Banning) Act, 1978.

3. The allegation were that Chetan Malik and Rajesh Malik

were the Directors originally of one M/s B.K.Jewellery

House Marketing Ltd. and they had induced various

investors to invest in number of schemes, giving an

impression that these schemes were very lucrative. It was

alleged that the petitioners invited the members of general

public to deposit a sum of Rs.3,533/- or Rs.13,444/- as

Silver distributor or Rs.68,216/- as Gold distributor and

Rs.3,36,738/- as Platinum distributor which would get

them very lucrative benefits.

4. During the course of investigation, it was found that apart

from, Chetan Malik and Rajesh Malik as Directors of M/s

B.K.Jewellery House Marketing Pvt. Ltd., there were other

persons named as Vinay Kumar, Shabad Ansari, Anand

Shanker and Sajid Jabbar who had also represented

themselves as the promoters of the company for procuring

the business for the accused company. It is alleged that

after the arrest of Vinay Kumar and Shabad Ansari, an

application under Section 439 of Cr.P.C. for grant of

regular bail was filed before the learned Additional Sessions

Judge Smt.Bimla Makin, learned District Judge (North

West) which was heard on various dates and judgment was

reserved.

5. On 17.9.2009, the present petitioners filed a separate bail

application u/s 167 (2)(a) (ii) of Cr.P.C. for grant of

statutory bail in the Court of learned ACMM (West District)

stating therein that as the charge sheet was not filed

against the petitioners within sixty days from the date of

their arrest and accordingly, the petitioners were entitled

to the statutory bail. This bail application is alleged to have

been dismissed by the learned ACMM on 21.10.2009 by

observing that the period within which the charge sheet

was to be filed qua the present petitioners was not 60 days

but was 90 days.

6. Since the application for grant of statutory bail by the

learned Magistrate was dismissed, the petitioners felt

aggrieved and filed a petition for grant of the said benefit

u/s 167 (2) (a) (ii) of the Cr.P.C. read with Section 439 of

Cr.P.C. This application was considered by the learned

District and Additional Sessions Judge Smt.Pratibha Rani

(West) and it was rejected on 07.11.2009.

7. It is the case of the petitioner that although the order for

grant of statutory bail was passed on 7.11.2009 however,

the petitioner learnt about the said order for the first time

and that too by inspection of the record on 13.11.2009.

8. In the meantime, the petitioner seems to have felt aggrieved

on account of non-disposal of the regular bail application of

the petitioner u/s 439 of the Cr.P.C. and accordingly he

was allegedly constrained to file a petition u/s 482 of

Cr.P.C. before the High Court for grant of bail or in the

alternative set aside the order of Sh.G.P.Mittal marking the

application u/s 439 of Cr.P.C. which was transferred from

the Court of Smt. Bimla Makin to the Court of learned

ACMM (West) vide orders of the learned District Judge.

9. The petitioner feeling aggrieved by the said order passed by

Sh.G.P.Mittal, learned Sessions Judge chose to file a

criminal petition before the High Court on 03.11.2009

praying that the said bail application be either directed to

be disposed of by Smt.Bimla Makin, learned Additional

Sessions Judge as she had reserved the judgment or in the

alternative mark the matter to any other Additional District

Judge after setting aside the order of Sh.G.P.Mittal, learned

District Judge or alternatively hear the bail application in

the High Court itself and decide the same.

10. The said order of District Judge was set aside to the extent

that instead of directing the ACMM (West) to decide the

application u/s 439 of Cr.P.C. It was directed to be decided

by the learned District Judge Smt.Pratibha Rani as it was

an application filed u/s 439 of Cr.P.C. and only Sessions

Court could deal with the same.

11. It has been contended by the learned counsel for the

petitioner that the said application is still pending

adjudication.

12. The petitioner has now chosen to file the present petition

by raising the point that Smt.Pratibha Rani, Additional

Sessions Judge (West) has disqualified herself to consider

the said application of the present petitioner u/s 439 of

Cr.P.C. on account of the fact that the earlier bail

application u/s 167 (2)(a)(ii) Cr.P.C. has not only been

rejected by the said learned District and Sessions Judge on

the ground that the application is not maintainable or that

he cannot be granted the benefit of bail as there is no

violation of Section 167 (2)(a)(ii) Cr.P.C. but it has also been

rejected on merits and thereby, she has reflected her mind

against the petitioner. It was urged that the decision on

the bail application of the petitioner u/s 439 Cr.P.C. will

become an empty formality. It was in this background that

the learned counsel for the petitioner has contended that

the regular bail application of the petitioner be heard by a

Judge other than Smt.Pratiha Rani or allegedly the

observations which have been passed by her on the merits

of the case rejecting the bail application of the petitioner be

set aside as the prayer of the petitioner was only for grant

of bail on account of non-compliance of statutory

provisions.

13. The learned APP has contested the plea of the present

petitioner on the ground that admittedly the bail

application of the petitioner u/s 167 (2)(a)(ii) Cr.P.C. was

rejected on 7.11.2009 which happens to be a date before

10.11.2009 vide which order this Court on a petition filed

by the petitioner had directed the learned District Judge

(West) to decide the application for grant of bail u/s 439 of

Cr.P.C. of the petitioners as expeditiously as possible. It

was the contention of the learned APP that in case the

order on 07.11.2009 was passed which was within the

knowledge of the present petitioner then it was his duty to

bring this fact to the notice of the Court which would have

been taken care of, while passing the order on 10.11.2009.

Since this has not been done, the petitioner is contesting

the present petition on the ground that no such direction

for transfer of the case from District Judge (West) to any

other Additional District Judge can be ordered by this

Court. The learned APP has also filed the status report

which supports his submissions.

14. I have considered the respective submissions of the learned

counsel for the parties and gone through the authorities

titled Nitin Nagpal Vs. State 2006(2) JCC 1138 and

Ashwani Lochan Aggarwal Vs. State 2007(1) JCC 140

which have been cited by the learned counsel for the

petitioner in support of his case.

15. There is no dispute about the fact that the present

petitioners had filed an application for grant of regular bail

under Section 439 Cr.P.C. much prior to the filing of an

application for grant of what is called as a bail in default or

statutory bail in terms of Section 167(2)(a) (ii) of the Cr.P.C.

on account of the non filing of the charge sheet within the

period of 60 or 90 days from the date of arrest as envisaged

in law.

16. In the instant case the petitioner admittedly filed an

application for grant of bail in default on 17.09.2009

assuming that the charge sheet ought to have been filed by

the investigating agency within a period of 60 days from the

date of the arrest while as the learned District Judge (West)

Ms.Pratibha Rani was of the view that since the case is

alleged against the petitioner was such where the charge

sheet ought to have been filed within 90 days and

accordingly the bail application was dismissed.

17. Normally with the dismissal of the default bail application,

the matter ought to have been brought to an end at that

stage but it seems that the learned District Judge (West) in

its anxiety to do justice to the matter exceeded its powers

and ventured into an arena where she was neither expected

nor requested to go. She went ahead to examine the case

on its merits and observed that even if the application for

grant of bail is considered on its merits, even then the

gravity or the seriousness of allegations against the

petitioners is such that they did not deserve to be enlarged

on bail, without realizing the fact that neither there is any

such ground for bail nor was any such point urged by the

counsel. Moreover, the application for grant of bail of the

petitioner which stood transferred from the District Judge

(West) still was pending. This portion of the order which

was passed by the learned Judge on the merits of the case

and which has been quoted in the prayer clause of the

petitioner is unsustainable in the eyes of law and deserves

to be accordingly deleted.

18. So far as the two judgments which have been referred to by

the learned counsel for the petitioner are concerned, they

do not help the petitioner in any manner. Both these

judgments are pertaining to cases of bail in default while as

the case of the petitioner is not a case of bail in default,

rather it is case where certain observations are passed

while disposing of default bail application which will have

bearing and adverse effect on the regular bail application.

19. Now the question which arises for consideration is what

happens to the regular bail application one of the main

grievance of the petitioner in the first round had been that

his application for regular bail has been heard and orders

not passed because of change of jurisdiction the matter had

been transferred to the present District where also the

application could not be disposed of because of the

aforesaid reason. Whatever, delay has occurred cannot be

undone, but another aspect of the matter is that where the

Apex Court has said that normally if a bail application has

been dealt with by one particular Judge then all successive

applications at the same level must go to the same learned

Judge to maintain continuity and consistency and above all

to prevent forum shopping, but in view of the peculiar facts

and circumstances of this case and in order to hold one of

the dictums of „rule of law‟ that justice must not only be

done but seems to be done, is principle of law which forms

the bed rock of the rule of law. Therefore, I am of the view

that interest of justice in this case will be met in case the

regular bail application of the petitioner which is still

pending is dealt with by such learned Additional Sessions

Judge of the District (West) to which the learned District

Judge (West) Ms.Pratibha Rani marks the application.

With these observations, the petition is allowed.

20. The expression of any opinion made hereinbefore may not

be treated as an expression on the merits of the case and

the orders in this case are passed in view of peculiar facts

and circumstances may not be quoted as precedent.

21. Copy of this judgment be given Dasti to the learned counsel

for the parties under the signatures of the Court Master.

V.K.SHALI, J.

DECEMBER 16, 2009 RN