Naresh Kumar vs State
2010 Latest Caselaw 5355 Del

*           IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      BAIL APPLN. 1738/2010

                                                      Decided on 25.11.2010
IN THE MATTER OF :
NARESH KUMAR                                             ..... Petitioner
                            Through: Mr. Siddharth Luthra, Sr.Advocate With
                            Mr.Ritesh Bahri and Mr.A.K.Bansal, Advocates
                       versus
STATE                                                    .... Respondent
                            Through: Mr. Navin Sharma, APP
                            Inspector Rajendra Prasad, ALBR Sec./EOW
                            Crime Branch
CORAM

* HON'BLE MS.JUSTICE HIMA KOHLI

     1. Whether Reporters of Local papers may               No
        be allowed to see the Judgment?

     2. To be referred to the Reporter or not?              No

     3. Whether the judgment should be                      No
        reported in the Digest?

HIMA KOHLI, J. (Oral)

1. The present petition is filed by the petitioner praying inter alia

for grant of anticipatory bail under section 438 of the Cr.P.C., in respect of

FIR No.511/2007 lodged by the complainant, Mr.Naresh Sabharwal against

the petitioner and three others under Section 120B/406/419/420 IPC

registered with PS Defence Colony.

2. In the order dated 1.11.2010, counsel for the petitioner had

stated that the ground for preferring yet another petition seeking

anticipatory bail in FIR No.511/2007, after the rejection of his earlier

anticipatory bail application is the fact that the learned APP had wrongly

made a submission on 18.8.2010 to the effect that the petitioner was

involved in four other separate cases. It was submitted on 1.11.2010 by the

counsel for the petitioner that on the contrary, the petitioner was not

involved in FIRs No.41/2005 and 237/1999 at all. However, the involvement

of the petitioner in FIRs No.71/2005 and 342/2004 was not denied. In view

of the submissions made on behalf of the petitioner, the learned APP was

directed to file a status report giving the current position regarding the

aforesaid FIRs, which found mention in para 8 of the rejection order dated

18.8.2010, passed in Bail Application No.1847/2009.

3. A verification report is handed over in the court. As per the said

report, the petitioner is stated to have been charge-sheeted in FIRs

No.71/2005 and 342/2004. It is further stated that the petitioner was

named in FIR No.237/1999. However, there is no mention of FIR

No.41/2005 in the said report. Learned APP admits that the petitioner is not

involved in FIR No.41/2005. It is therefore clear that on 18.8.2010, the

statement made on behalf of the prosecution that the petitioner is involved

in FIR No.41/2005, was incorrect. Furthermore, as pointed out by the

counsel for the petitioner from the reply dated 18.10.2010 issued by the

DCP, South Gugraon to the petitioner, on an application filed by him under

the RTI Act, while FIR No.41/2005 was filed under Section 451 IPC alone, as

per the Status Report dated 6.11.2009, filed in the earlier Bail Application,

the offences mentioned were under Sections 406/419/420/467/468/471 IPC.

This fact is also not denied by the prosecution.

4. The second fact that emerges is that in so far as FIR

No.237/1999 is concerned, the said FIR does not mention the name of the

petitioner as an accused, as is apparent from the aforesaid reply dated

18.10.2010 given by the DCP South Gugraon to the RTI application filed by

the petitioner. Perusal of the judgment dated 2.5.2008, passed by the

Judicial Magistrate, Ist Class, Gurgaon, in Crl.Case No.663/17.9.2001,

arising out of FIR No.237/99 under Sections 426/468/471/467/506 and 120-

B IPC shows that the petitioner is not named as an accused and after trial,

all the four accused were acquitted in the case.

5. In so far as FIR No.342/2004 is concerned, documents have

been placed on record by the petitioner to show that quashing proceedings,

in respect of the said FIR are pending before the Punjab & Haryana High

Court and the matter is now listed on 9.12.2010. Counsel for the

petitioner specifically draws the attention of this Court to a certified copy of

the affidavit dated 22.12.2005 of the complainant in the aforesaid case

confirming the fact that he did not want any legal action to be taken against

the petitioner.

6. On the prosecution being asked as to how such an incorrect

submission could have been made in the Status Report filed in Bail

Application No. 1847/2009 that FIRs No.41/2005 and 237/1999 are also

registered against the petitioner, it is stated that the submission was made

on the basis of information furnished by the complainant to the previous IO.

The Court expects a greater sense of responsibility from the prosecution in

discharge of its duty, particularly when it relates to making averments with

regard to pending cases against an accused, as that would result in the

Court formulating an opinion as to his antecedents while exercising its

discretion for grant of relief under Sections 438/439 of the Cr.PC. The

prosecution is directed to be more careful in future.

7. While passing the order dated 18.8.2010 in Bail Application

No.1847/2009, rejecting the relief of anticipatory bail to the petitioner, the

antecedents of the petitioner were highlighted as not being above board and

it was stated with much emphasis that he was involved in other cases in

which he had adopted a similar modus operandi to dupe innocent

purchasers, as adopted in the present case. The said fact did weigh with the

Court while denying him the relief of anticipatory bail. Learned APP for the

State does not deny the fact that right from the date of passing of the

interim order on 6.10.2009 in BA No.1847/2009 till passing of the order

dated 18.8.2010, rejecting the earlier bail application moved by the

petitioner, he had been appearing before the IO as and when summoned for

interrogation. It is further stated that even today, there is sufficient

material available with the IO for him to file a charge sheet against the

petitioner herein, without insisting on his custodial interrogation.

8. In view of the aforesaid facts and circumstances of the case, the

present petition is allowed. It is ordered that in the event of arrest, the

petitioner shall be released on bail, subject to his furnishing a personal bond

in the sum of ` 50,000/-, with one surety in the like amount, to the

satisfaction of the investigating officer/arresting officer. Needless to state

that the petitioner shall continue to participate in the investigation as and

when called by the IO and shall not tamper with the evidence or create any

hindrance or impediment during the course of investigation.

9. The petition is disposed of.

                                                               (HIMA KOHLI)
NOVEMBER       25, 2010                                           JUDGE
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