Delhi High Court
Kashish Jain vs State on 3 November, 2020
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 01.09.2020
Judgment pronounced on: 03.11.2020
+ BAIL APPLN.-1788/2020
KASHISH JAIN ......Petitioner
Through: Mr. Ramesh Gupta, Learned
Sr. Advocate along with Mr.
Ajay P.Tushir, Advocate.
Versus
THE STATE ..... Respondent
Through: Mr. G.M.Farooqui,
Learned APP for the State.
SI Pradeep, PS Model Town.
Mr. Sumit Choudhary,
Learned counsel for the
complainant.
CORAM:
HON'BLE MR. JUSTICE BRIJESH SETHI
JUDGMENT
BRIJESH SETHI, J.
1. The hearing has been conducted through video conference.
2. This application has been filed by the petitioner under Section
439 Cr.P.C. read with Section 482 Cr.P.C. for grant of regular bail
in FIR bearing no. 341/2018, under section 420/467/468/471/34/120
IPC, registered at P.S. Model Town, New Delhi.
3. It is submitted by learned senior counsel that petitioner is
innocent and has been falsely implicated in the present case.
Petitioner is a young boy of 26 years and is in judicial custody since
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24th November, 2018. He is suffering from various ailments and
appropriate treatment is not being provided to him despite the fact
that Doctor has specifically mentioned that petitioner should be kept
in 24x7 supervision and jail authorities should ensure that no active
suicidal means to be kept near him. The poor health condition of the
petitioner make him vulnerable to Covid-19. Petitioner's father is a
53 years old diabetic patient with multiple coronary blockages and
he has already undergone two stents implants and angioplasty which
also makes him vulnerable to novel corona virus. Investigation in
the present case has been completed and Charge-sheet has also been
filed by the investigating agency on 23rd January, 2019 but since
then no trial has been commenced as the charges are yet to be
framed. Petitioner has not been named in the present FIR. Co-
accused Naresh Jain and Simi Jain have already been granted
interim protection from their arrest vide order dated 13th February,
2019. Petitioner has also been granted bail by learned trial court
vide order dated 21st January, 2019 in connection with another FIR
bearing No. 277/2018, registered with P.S. Sadar Bazar, in respect
of the same loan transaction with Cholamandalalm Bank in which
petitioner's name was allegedly involved as co-borrower.
4. It is submitted that learned Additional Sessions Judge has
failed to consider that no specific role of the petitioner has been
mentioned in the charge sheet except that he was allegedly partner
of the firm M/S NH International whose partnership was executed
on the address in question before family of the petitioner shifted in
the said floor. There is no legally admissible evidence on record
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which can prima facie suggest that the petitioner has committed any
offence punishable under section 420/467 IPC. Learned counsel for
the appellant has, therefore, prayed for grant of bail. Learned senior
counsel for the petitioner has, however, clarified that he is confining
his arguments on merits and so far as interim bail on medical
grounds is concerned, a separate application has been filed by the
petitioner.
5. Learned senior counsel for the petitioner in support of his
contentions has also relied upon the following case laws:-
a. R. Vasudevan vs. CBI, New Delhi, 2010(1) JCC 642;
b. Moti Ram vs. State of M.P., (1978) 4 SCC 47, Hon'ble
Supreme Court;
c. Ashok Dhingra vs N.C.T. of Delhi, 2001 (1) JCC[SC] 178;
d. Ravinder Saxena vs. State of Rajasthan, 2009 (2) JCC1498;
e. Rajeev Choudhary vs. State, 2009 (2) JCC 1498;
f. H.B. Chaturvedi vs. C.B.I, 2009 (2) JCC 1498;
g. Sanjay Chandra vs. C.B.I., (2012) 1 see 40;
h. Dr. Shivinder Mohan Singh vs. Directorate of Enforcement,
BAIL APPL. 1353/2020 DHC;
i. Dataram Singh vs. State of Uttar Pradesh and Ors., (2018) 3
SCC 22;
j. Sheila Sebastian vs. R. Jawaharaj and Ors.,
MANU/SE/0542/201S;
k. Sharad T. Kabra vs. Union of India, (UOI) 2018(4) SCC 493;
l. Manish Solanki vs. The State of Rajasthan, 2019(4) SCJ 340;
m. Firoz Khan vs. State (NCT of Delhi), MANU/DE/1134/2020;
n. Rajendra Prakash Agrawal vs. Union of India (UOI) and Ors.,
2015(5)JCC 233;
o. Narender Jain vs. State, Bail Appln. 1992/2009;
p. Tunde Gbaja vs. Central Bureau of Investigation,
2007(95)DRJ429;
q. Sharad Kumar vs. CBI, 2011 (4) JCC3048.
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6. I have gone through the above case law. There is no quarrel
with the proposition of law laid down therein. However, these
authorities are clearly distinguishable on the basis of facts and
circumstances stated therein. Moreover, it is settled principle of law
that no straitjacket formula can be laid down in deciding a bail
application. The Hon'ble Supreme Court in State of Bihar & Anr.
v. Amit Kumar @ Bachcha Rai, (2017) 13 SCC 751 has held as
under:-
"11.Although there is no quarrel with respect
to the legal propositions canvassed by the
learned counsels, it should be noted that there
is no straight jacket formula for
consideration of grant of bail to an accused.
It all depends upon the facts and
circumstances of each case. The Government's
interest in preventing crime by arrestees is
both legitimate and compelling. So also is the
cherished right of personal liberty envisaged
under Article 21 of the Constitution. Section
439 of The Code of Criminal Procedure, 1973,
which is the bail provision, places
responsibility upon the courts to uphold
procedural fairness before a person's liberty
is abridged. Although 'bail is the rule and
jail is an exception' is well established in our
jurisprudence, we have to measure
competing forces present in facts and
circumstances of each case before enlarging
a person on bail."(Emphasis supplied)
7. It is also well settled that judicial precedent cannot be
followed as a statute and has to be applied with reference to the facts
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of the case involved in it. The ratio of any decision has to be
understood in the background of the facts of that case. What is of
the essence in a decision is its ratio and not every observation found
therein nor what logically follows from the various observations
made in it. It has to be remembered that a decision is only an
authority for what it actually decides. It is well settled that a little
difference in facts or additional facts may make a lot of difference in
the precedential value of a decision. The ratio of one case cannot be
mechanically applied to another case without regard to the factual
situation and circumstances of the two cases.
8. In Padma Sundara Rao & Ors. v. State of Tamil Nadu &
Ors.(2002) 3 SCC 533 the Hon'ble Supreme Court has held that the
ratio of a judgment has to be read in the context of the facts of the
case and even a single fact can make a difference. In para 9 of the
said judgment, the Hon'ble Supreme Court has held as under:
"9. Courts should not place reliance on
decisions without discussing as to how the
factual situation fits in with the fact situation
of the decision on which reliance is placed.
There is always peril in treating the words of
a speech or judgment as though they are
words in a legislative enactment, and it is to
be remembered that judicial utterances are
made in the setting of the facts of a particular
case, said Lord Morris in British Railways
Board v. Herrington. Circumstantial
flexibility, one additional or different fact
may make a world of difference between
conclusions in two cases."
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9. In Bharat Petroleum Corporation Ltd v. N.R. Vairamani,
(2004) 8 SCC 579, the Hon'ble Supreme Court has held that a
decision cannot be relied on without considering the factual
situation. The Hon'ble Supreme Court has observed as under;
"9. Courts should not place reliance on
decisions without discussing as to how the
factual situation fits in with the fact situation
of the decision on which reliance is placed.
Observations of courts are neither to be read
as Euclid's theorems nor as provisions of a
statute and that too taken out of their context.
These observations must be read in the
context in which they appear to have been
stated. Judgments of courts are not to be
construed as statutes. To interpret words,
phrases and provisions of a statute, it may
become necessary for judges to embark into
lengthy discussions but the discussion is
meant to explain and not to define. Judges
interpret statutes, they do not interpret
judgments. They interpret words of statutes;
their words are not to be interpreted as
statutes. In London Graving Dock Co.
Ltd. v. Horton [1951 AC 737: (1951) 2 All
ER 1 (HL)] (AC at p. 761) Lord Mac Dermott
observed: (All ER p. 14 C-D)
"The matter cannot, of course, be settled
merely by treating the ipsissima verba of
Willes, J., as though they were part of an Act
of Parliament and applying the rules of
interpretation appropriate thereto. This is not
to detract from the great weight to be given to
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the language actually used by that most
distinguished judge..."
10.In Home Office v. Dorset Yacht Co. [(1970)
2 All ER 294 : 1970 AC 1004 : (1970) 2 WLR
1140 (HL)] (All ER p. 297g-h) Lord Reid said,
"Lord Atkin's speech ... is not to be treated as
if it were a statutory definition. It will require
qualification in new circumstances".
Megarry, J. in Shepherd Homes Ltd. v.
Sandham (No. 2) [(1971) 1 WLR 1062 : (1971)
2 All ER 1267] observed:
"One must not, of course, construe even a
reserved judgment of Russell, L.J. as if it were
an Act of Parliament."
And, in Herrington v. British Railways
Board [(1972) 2 WLR 537: (1972) 1 All ER
749 (HL)] Lord Morris said: (All ER p. 761c)
"There is always peril in treating the words of
a speech or a judgment as though they were
words in a legislative enactment, and it is to be
remembered that judicial utterances made in
the setting of the facts of a particular case."
11.Circumstantial flexibility, one additional or
different fact may make a world of difference
between conclusions in two cases. Disposal of
cases by blindly placing reliance on a decision
is not proper.
12. The following words of Lord Denning in
the matter of applying precedents have become
locus classicus:
"Each case depends on its own facts and a
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close similarity between one case and another
is not enough because even a single
significant detail may alter the entire aspect,
in deciding such cases, one should avoid the
temptation to decide cases (as said by
Cardozo) by matching the colour of one case
against the colour of another. To decide
therefore, on which side of the line a case
falls, the broad resemblance to another case
is not at all decisive.
********Precedent should be followed only
so far as it marks the path of justice, but you
must cut the dead wood and trim off the side
branches else you will find yourself lost in
thickets and branches. My plea is to keep the
path to justice clear of obstructions which
could impede it."
10. Thus, the present bail application has to be decided on the
basis of its own facts. Learned Additional Public Prosecutor for the
state has opposed the application on the ground that offence
committed by the petitioner is serious in nature. He is the
beneficiary of cheated amount of approximately Rs. 2.20 Crores. It
is further submitted that though investigation qua petitioner is
complete and charge-sheet has been filed against him, however,
supplementary charge-sheet is yet to be filed qua parents of the
petitioner and bank employees. Since parents of the petitioner have
been granted protection, they are not co-operating in the
investigation. It is further submitted that petitioner and his parents
have no permanent address in Delhi and therefore, there are chances
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of his absconding. He has, therefore, prayed for dismissal of the
present application.
11. Mr. Sumit Choudhary, Learned counsel for the complainant
also filed reply to the bail application and submitted that there is no
change of circumstance since dismissal of earlier bail application of
the petitioner by this court vide its order dated 31st October, 2019. It
is submitted that the delay in trial has been on account of non-
appearance of counsel for the petitioner and the petitioner has taken
a deliberate stand to procrastinate the trial court. It is further denied
that trial has been delayed on the ground that supplementary charge-
sheet is yet to be filed. Perusal of the order dated 2 nd November,
2019 of trial court reveals that the investigating agency has
categorically stated that supplementary charge-sheet is only to be
filed qua co-accused persons (parents of the petitioner), who were
granted interim protection by this Court. However, ever since
interim bail has been granted, the co-accuseds have adopted
delaying tactics by taking regular adjournment in their respective
bail petition.
12. It is further submitted that petitioner is a habitual offender,
who is also accused in similar case bearing FIR no. 277/2018, PS
Sadar Bazaar. Further, co-accuseds have failed to deposited Rs.
40,00,000/- as per direction of this Hon'ble Court in above noted
FIR, which further reflects that neither the petitioner nor his parents
have any intention to comply with the directions of this Court or
return the cheated amount.
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13. It is further submitted that petitioner is an economic offender,
who has cheated the complainant in a well deliberated conspiracy
and if granted bail by this Hon'ble Court, he carries a significant
flight risk as he does not have a permanent abode and, therefore, in
view of the abovementioned submissions, learned counsel for the
complainant has requested for dismissal of the present bail
application.
14. Learned counsel for the petitioner has filed rejoinder to the
reply of the learned counsel for the complainant and denied all the
allegations. It is submitted that reply in question has been filed only
with a purpose to delay the disposal of the present application. Non-
framing of charge for the last almost 2 years after filing of the
charge-sheet itself indicates that there is likelihood of delay in
disposal of the case and that petitioner's fundamental right for
expeditious justice under Article 21 of the Constitution of India is,
thus, violated. It is submitted that petitioner along with his counsel
was appearing diligently in almost all the hearings and matter in trial
court was adjourned almost for one year on account of non filing of
supplementary charge-sheet. Interim bail applications of co-
accuseds have no bearing on the trial qua the present petitioner as
the charge-sheet has already been filed before the trial court and
specimen, thumb impression and handwriting of the petitioner has
already been obtained and sent to FSL.
15. I have considered the rival submissions. Perusal of record
reveals that petitioner was arrested on 24th November, 2018 and
after completion of investigation, charge-sheet has been filed by the
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investigating agency on 23rd January, 2019. However,
supplementary charge-sheet is yet to be filed qua the co-accuseds
Naresh Jain and Simi Jain. According to the status report of SHO PS
Model Town dated 24th August, 2020, the co-accuseds i.e. Naresh
Jain and Simi Jain who have been granted interim protection by this
court vide order dated 13th February, 2019 are not co-operating in
the investigation. They have not given their specimen signature and
their custodial interrogation is required for the said purpose. In the
absence of the same, the prosecution cannot file supplementary
charge-sheet qua co-accuseds. Thus, it is clear that delay in filing
the supplementary charge-sheet and framing of charges against the
petitioner are for the reason that the co-accuseds have been granted
interim protection by this court and they are not co-operating with
the investigating agency. Thus, there is no deliberate delay on the
part of investigating agency in filing the supplementary charge-
sheet. The earlier bail application of petitioner was dismissed by
this court vide a detailed order dated 31st October, 2019 in which it
was observed that the proprietor of M/s. Shreya International
namely Simmi Jain had transferred Rs. 95 lacs to Kashish
International whose owner is petitioner Kashish jain and Rs.55 lacs
to NH international, whose partners are Naresh jain and Kashish
Jain, through RTGS on 11th May, 2015. Further, the alleged original
sale deed of property Z-10, 2nd floor, Model Town, Delhi shows that
on the front page of sale deed, the photographs of complainant
Sanjay Garg and accused Simmi Jain were affixed but the seal of
sub-registrar was incomplete on the photo of Sanjay Garg. Accused
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Simmi Jain had transferred Rs.77 lacs (apart from Rs. 55 Lacs to
NH International and Rs. 95 Lacs to Kashish International) in the
account of Kashish International and saving account of Kashish
Jain. The applicant is, thus, the beneficiary of cheated amount of
Rs.2.20 Crore approx. and is directly involved in this case which is
clear from his presence at the time of valuation of alleged property
No.Z-10, 2nd floor, Model Town, Delhi which was done at the
instruction of Cholamandalam Ltd.
16. In view of the above facts appearing on record, it is clear that
petitioner is beneficiary of the cheated amount of Rs. 2.2 Crores.
The amount has flowed to him being one of the beneficiaries of the
company. Petitioner is co-applicant in the Loan which has been
taken from Cholamandalam Ltd. and he has played an active role
throughout the loan process by using forged documents. The
investigation qua co-accuseds is under progress. It has also come on
record that petitioner is also involved in another case bearing FIR
No. 277/18 u/s. 419/420/467/468/471/120-B IPC, PS Sadar Bazar.
There is no delay on the part of investigating agency in filing
supplementary charge-sheet. Rather, it is because of the non-co-
operation of the co-accuseds i.e. parents of the petitioner that the
supplementary charge-sheet is not being filed.
17. In view of the above discussion and also keeping in mind the
fact that petitioner is also involved in another case bearing FIR No.
277/18 under Section 419/420/467/468/471/120-B IPC, PS Sadar
Bazar, New Delhi, no grounds for regular bail are made out at this
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stage. The bail application is, therefore, dismissed and stands
disposed of accordingly.
18. However, nothing stated herein above is expression of
opinion on the merits of the case.
19. A copy of this order be sent to the concerned Jail
Superintendent via electronic mode.
20. The order be uploaded on the website of this court forthwith.
BRIJESH SETHI, J
NOVEMBER 03, 2020
AK
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