Praduban Pandit @ Karan Pandit vs State Of H.P
2021 Latest Caselaw 894 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 99 of 2021

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                                  Reserved on:            Jan 21, 2021.





                                  Date of Decision:       Feb 4, 2021.

    Praduban Pandit @ Karan Pandit                               ...Petitioner.





                                  Versus

    State of H.P.                                                ...Respondent.





    Coram:

    The Hon'ble Mr. Justice Anoop Chitkara, Judge.

    Whether approved for reporting?1NO

    For the petitioner:    Mr. Rajiv Jiwan, Senior Advocate with Mr. Ajit Sharma,

                           Advocate.

For the respondent: Mr. Vikas Rathour & Narender Guleria, Addl. Advocate Generals with Mr. Bhupinder Thakur & Divya Sood,

Deputy Advocate Generals and Mr. Rajat Chauhan, Law Officer.

                           THROUGH VIDEO CONFERENCE





    FIR No. Dated              Police Station                        Sections
    238/2019 23.8.2019         Balh, Distt. Mandi                    419, 420, 120B, IPC
                                                                     and 66C, 66-D, IT





                                                                     Act

    Anoop Chitkara, Judge.

For involvement in an online bank fraud, the accused, who is in custody w.e.f.

24.2.2020, has come up before this Court under Section 439 of CrPC, seeking bail,

on the grounds that the he is in custody for a considerable time.

Whether reporters of Local Papers may be allowed to see the judgment?

2. Earlier, the petitioner had filed a petition under Section 439 CrPC before the

concerned Sessions Court. However, vide order dated 8.6.2020 learned Sessions

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Judge, Mandi HP, dismissed the petition because of the amount involved. After that,

the petitioner filed a bail petition before this Court, which was registered as

Cr.MP(M) No.2112 of 2020. Vide order dated 16.12.2020, the same was dismissed

as withdrawn.

3. Para 12 of the bail petition and status report mentions the following criminal

history:

a) FIR 9/2019 dated 25.10.2019 u/s 467, 468, 471, 420, IPC and 66C, 66D, IT Act, Police Station Asansol, West Bengal

4. Briefly, the allegations against the petitioner are that a complainant gave a

written information to the police alleging therein about online net banking fraud. The

allegations are that the complainant has two bank accounts in Punjab National Bank.

From both these accounts, a sum of Rs.25,74,435/- has been withdrawn in his

absence. The complainant has gone to the bank to withdraw a sum of Rs.10,000/-,

however, he received a message that the amount had been withdrawn from his

account. He inquired from the bank officials about it and he was told that the ATM

machine sometimes mal-functions. He filed the complaint and after some days, he

received a phone call from one Rahul Sharma, who stated that he is speaking from

Head Office of Punjab National Bank. He asked him to disclose 16 digits pin

number. He stated that it is required to register his complaint. After that, he did not

receive any message. On 22.8.2019 when he enquired from the bank, he came to

know that there is no money in his account. When the complainant visited the bank,

the bank officials have asked him to register FIR. Based on this information, the

police started inquiry.

5. It came in the investigation that the petitioner had received a phone call from

mobile No.7469980751. Investigation further revealed that an amount of

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Rs.25,74,435/- has been withdrawn from both the accounts of the complainant. The

investigation further revealed that the mobile No.7469980751 was traced in West

Bengal. The police got trails of transactions linked to PNB, Indian Post Payment

Bank, IRCTC-Mudra, Citrus Pay etc. and all that led to deposit of the money in a

private sector bank. Investigation further revealed involvement of another mobile

No.8597590806. It further revealed the involvement of the bail petitioner in this

online bank fraud. Based upon the investigation, the police arrested the accused and

he is in judicial custody since 24.2.2020.

6. Mr. Rajiv Jiwan, learned senior Advocate, assisted by Mr. Ajit Sharma,

Advocate for the petitioner contends that incarceration before the proof of guilt

would cause grave injustice to the petitioner and family. He further states that they

have placed on record Adhar Card, identity card issued by Election Commission of

India and his account number details of AXIS Bank and ration card ID as identify

documents of the petitioner and it shall be impossible for the petitioner to abscond or

not to attend trial.

7. On the contrary, Mr. Vikas Rathour, learned Additional Advocate General

contends that the accused is a proven habitual offender, and given his past conduct;

he is likely to repeat the offence. He further insists that if this Court is inclined to

grant bail, then such a bond must be subject to very stringent conditions.

8. In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 30 & 31), this

Court after considering the relevant judicial precedents observed that in reckoning

the number of cases as criminal history, the prosecutions resulting in acquittal or

discharge; or when Courts quashed the FIR; the prosecution stands withdrawn, or

Prosecution filed a closure report; cannot be included. The criminal history must be

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of cases where the accused was convicted, including the suspended sentences and all

pending First Information Reports, wherein the bail petitioner stands arraigned as an

accused. While considering each bail petition of the accused with a criminal history,

it throws an onerous responsibility upon the Courts to act judiciously with

reasonableness because arbitrariness is the antithesis of law. Although crime is to be

despised and not the criminal, yet for a recidivist, the contours of a playing field are

marshy, and graver the criminal history, slushier the puddles.

9. In the present case, the maximum sentence imposable for the offences

mentioned in FIR attracts the application of the directions passed in Arnesh Kumar

v. State of Bihar, (2014) 8 SCC 273, (Para 13), wherein Hon'ble Supreme Court

directed all the State Governments to instruct its police officers not to arrest

automatically when the offence is punishable with imprisonment for a term which

may be less than seven years or which may extend to seven years; whether with or

without fine.

10. The petitioner is in judicial custody for the last 11 months and he is aged 23

years. Section 420, IPC prescribes maximum imprisonment for a term of seven

years. The petitioner has placed on record his adhar card, voter ID and account

details of HDFC Bank, details whereof have been given as under:

Adhar Number 967897068932

Identity Card number issued by Election Commision of india

A/c No.916010069784160, AXIS Bank Ltd.

Branch Name: Raniganj (WB)

18A, NSB Road, Near Rani Sati Mandir

Raniganj-713347

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Ration Card ID: RKSY-I 532152452

11. Given the above reasoning, the Court is granting bail to the petitioner, subject

to strict terms and conditions, which shall be over and above and irrespective of the

contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

12. In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734

of 2020, after analysing judicial precedents, this Court observed that any Court

granting bail with sureties should give a choice to the accused to either furnish surety

bonds or give a fixed deposit, with a further option to switch over to another.

13. The petitioner shall be released on bail in the FIR mentioned above, subject to

his furnishing a personal bond of Rs. Twenty-five thousand (INR 25,000/-), and shall

furnish two sureties of a similar amount, to the satisfaction of the Judicial Magistrate

having the jurisdiction over the Police Station conducting the investigation, and in

case of non-availability, any Ilaqa Magistrate.Before accepting the sureties, the

concerned Magistrate must satisfy that in case the accused fails to appear in Court,

then such sureties are capable to produce the accused before theCourt, keeping in

mind the Jurisprudence behind the sureties, which is to secure the presence of the

accused.

14. In the alternative, the petitioner may furnish aforesaid personal bond and

fixed deposit(s) for Rs. Twenty-five thousand only (INR 25,000/-), made in favour of

"Chief Judicial Magistrate, District Mandi H.P.,"

a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., Bank of

America, Chase, HSBC, City Bank, HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account.

b) Such a fixed deposit need not necessarily be made from the account of

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the petitioner and need not be a single fixed deposit.

c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.

d) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall

get the online liquidation disabled.

e) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as

FIR number.

f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for

substitution of fixed deposit with surety bonds and vice-versa.

h) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged by substitution as the case may be.

15. The furnishing of the personal bonds shall be deemed acceptance of the

following and all other stipulations, terms, and conditions of this bail order:

a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay the proceedings, and undertakes to appear before the concerned Court

and to attend the trial on each date, unless exempted. In case of an appeal, on this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

c) The petitioner shall not influence, browbeat, pressurize, make any

inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.

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d) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the investigation at all further stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail.

Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

e) In addition to standard modes of processing service of summons, the

concerned Court may serve or inform the accused about the issuance of summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any). [Hon'ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020]:

i. At the first instance, the Court shall issue the summons.

ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable

warrants.

iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to

procure the petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem

fit and proper to achieve the purpose.

16. In case of non-appearance, then irrespective of the contents of the bail

bonds, the petitioner undertakes to pay all the expenditure (only the principal

amount without interest) that the Government(s) might incur to produce him

before such Court, provided such amount exceeds the amount recoverable

after forfeiture of the bail bonds, and also subject to the provisions of

Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse shall

entitle the trial Court to order the transfer of money from the petitioner's bank

account(s). However, this recovery is subject to the condition that the

expenditure incurred must be spent to trace the petitioner alone, and it relates

to the exercise undertaken solely to arrest the petitioner in that FIR, and that

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voyage was not for any other purpose/function what so ever.

17. During the trial's pendency, if the petitioner repeats or commits any

offence where the sentence prescribed is more than seven years or violates

any condition as stipulated in this order, the State may move an appropriate

application before this Court, seeking cancellation of this bail. Otherwise, the

bail bonds shall continue to remain in force throughout the trial and after that

in terms of Section 437-A of the CrPC.

18. Any Advocate for the petitioner and the Officer in whose presence the

petitioner puts signatures on personal bonds shall explain all conditions of

this bail order, in vernacular and if not feasible, in Hindi.

19. In case the petitioner finds the bail condition(s) as violating

fundamental, human, or other rights, or causing difficulty due to any

situation, then for modification of such term(s), the petitioner may file a

reasoned application before this Court, and after taking cognizance, even to

the Court taking cognizance or the trial Court, as the case may be, and such

Court shall also be competent to modify or delete any condition.

20. This order does not, in any manner, limit or restrict the rights of the

Police or the investigating agency from further investigation per law.

21. Any observation made hereinabove is neither an expression of opinion

on the merits of the case, nor shall the trial Court advert to these comments.

22. In return for the protection from incarceration, the Court believes that

the accused shall also reciprocate through desirable behavior.

23. There would no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the authenticity, such an officer

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can also verify its authenticity and may download and use the downloaded

copy for attesting bonds.

The petition stands allowed in the terms mentioned above.

(Anoop Chitkara) Vacation Judge.

February 4, 2021 (mamta)