Himachal Pradesh High Court
Vipan Kumar vs State Of Himachal Pradesh on 3 May, 2024
Author: Sushil Kukreja
Bench: Sushil Kukreja
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP(M) No. 792 of 2024 a/w
Cr.MPs(M) No. 798, 799, 808,
.
823, 861 & 868 of 2024
Reserved: 03.05.2024
Decided on: .05.2024
________________________________________________
1. Cr. MP(M) No. 721 of 2024
Vipan Kumar ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
2. Cr. MP(M) No. 724 of 2024
Kamal Dev ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
3. Cr. MP(M) No. 731 of 2024
Sanjeev Kumar Bassi ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
Surinder Singh ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
Rajesh ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
Praveen Kumar ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
.
Suresh Kumar ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
Anil Kumar Verma ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
Ravinder Kumar ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
Ghanshyam ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
Ramesh Kumar ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Puran Chand ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Rajesh Singh ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
.
Coram
The Hon'ble Mr. Justice Sushil Kukreja, Judge.
Whether approved for reporting?1
________________________________________________
For the petitioner(s): Mr. Vinod Chauhan, Ms.
Aanchal Singh, Mr. Ram Kumar,
Mr. Vikash Rathore, Mr.
Bhupinder Thakur, Mr. Ajay
Chandel, Ms. Nalot Nisha, Mr.
Harmohan Thakur, Ms.
Shabnam and Mr. Ishan
Sharma.
For the respondent : Mr. Navlesh Verma, Additional
Advocate General with Mr.
Balvinder Singh, Deputy
Advocate General.
____________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________
Sushil Kukreja, Judge
Since all these petitions arise out of FIR No.
120/2023 dated 24.09.2023, they have been heard together
and are being disposed of by this common order.
2. By way of instant petitions, filed under Section
438 of the Criminal Procedure Code, the petitioners, in the
event of their arrest, are seeking bail in case FIR No.
120/2023, dated 24.09.2023, registered at Police Station
Palampur, District Kangra, H.P., under Sections 420, 120-B
Whether reporters of Local Papers may be allowed to see the judgment?
of the Indian Penal Code (hereinafter referred to as "IPC"),
read with Section 5 of the Himachal Pradesh Protection of
.
Interests of Depositors (In Financial Establishments) Act,
1999 and Sections 21 & 23 of the Banning of Unregulated
Deposit Schemes Act, 2019.
3. The prosecution story, as per the status report, in
brief, is that on 24.09.2023, a complaint was received at
Police Station Palampur, District Kangra, H.P. against
accused Subhash Sharma, Hemraj, Sukhdev Thakur,
Abhishek Sharma and Milan Garg, wherein, it was stated
that many persons had invested their money through website
www.voscrow.io on the advice of the above named accused
persons. The owners of the website were accused Subhash
Sharma and Milan Garg. In exchange for the investment, the
virtual currency was given to the persons on the website.
However, accused Subhash Sharma, promoter Sukhdev
Thakur and Abhishek Sharma had cheated the general
public through websites Voscrow & Hypenext, as in the year
2019-2020, the above named persons kept on promising to
double the person's invested money, which continued till the
year 2021. During this period, some persons received return
on the funds invested by them and many persons followed
and made investments in the scheme, but after 25th
December, 2021, allocation of fund/return was stopped by
.
accused Subhash Sharma. Subsequently, he assured the
persons that they would start the distribution of return soon
and announced a tie up with the Hypenext Company, which
was owned by accused Milan Garg. Thereafter, he started
asking persons to invest in Hypenext and many persons
trusted his words and invested again. During that period,
some people got return on their investments, which
continued till the year 2022. However, later on, accused
Subhash Sharma informed that the company could not make
the returns due to some technical problems and asked for
some time to start the payment again. The accused persons
again acknowledged the pending refund of 18 Crores and
assured to activate ID's on Aglobal.IO by 08.08.2023.
However, till date the persons did not receive any return on
their investment in the scheme. As per the complainant, the
accused persons in connivance with one another and by
developing fake websites and by showing fake coins, have
embezzled huge amount. After the registration of FIR the
investigation commenced and during the course of
investigation, petitioners filed the instant petition seeking pre-
arrest bail and this Court vide orders passed on different dates,
granted interim bail to the petitioners.
.
4. The bail applications have been filed by the
petitioners on the ground that they are innocent and have been
falsely implicated in the present case. Learned counsel for the
petitioners contended that the investigation in the case qua the
petitioners is complete and no recovery is to be effected from
them. They further contended that since the investigation qua
the petitioners is complete and their custodial interrogation is
not required, therefore, no fruitful purpose will be served by
sending them behind the bars for an unlimited period, as trial is
not going to be completed in near future.
5. Conversely, the learned Additional Advocate
General submitted that the petitioners do not deserve to be
released on bail as they have been found involved in a serious
economic offence of huge magnitude, so at this stage, in case
they are enlarged on bail, they may tamper with the
prosecution evidence and may also flee from justice.
6. I have given my considered thought to the rival
contentions raised and also gone through the police file as well
as the status report filed by the prosecution. The perusal of the
record reveals that the investigation qua the petitioners
is complete. It has been held by the Hon'ble Supreme Court
in a catena of judgments that the fundamental postulate of
.
criminal jurisprudence is the presumption of innocence as a
person is believed to be innocent until found guilty. The
grant of bail is the general rule while putting a person in jail is
an exception. In Satender Kumar Antil vs. Central Bureau
of Investigation & Another, (2022) 10 SCC 51, it has been
held as under:-
"12. The principle that bail is the rule and jail is
the exception has been well recognized
r through the repetitive pronouncements of
this Court. This again is on the touchstone
of Article 21 of the Constitution of India.
... ... ... ... ... ... ... ...
14. Innocence of a person accused of an
offence is presumed through a legal fiction,
placing the onus on the prosecution to
prove the guilt before the Court. Thus, it is
for that agency to satisfy the Court that the
arrest made was warranted and
enlargement on bail is to be denied.
15. Presumption of innocence has been
acknowledged throughout the world. Article
14(2) of the International Covenant on Civil
and Political Rights, 1966 and Article 11 of
the Universal Declaration of Human Rights
acknowledge the presumption of
innocence, as a cardinal principle of law,
until the individual is proven guilty.
... ... ... ... ... ... ... ...
90. What is left for us now to discuss are the
economic offences. The question for
consideration is whether it should be
treated as a class of its own or otherwise.
This issue has already been dealt with by
this Court in the case of P. Chidambaram v.
Directorate of Enforcement, (2020) 13 SCC
791, after taking note of the earlier
decisions governing the field. The gravity of
the offence, the object of the Special Act,
.
and the attending circumstances are a few
of the factors to be taken note of, along with
the period of sentence. After all, an
economic offence cannot be classified as
such, as it may involve various activities
and may differ from one case to another.
Therefore, it is not advisable on the part of
the court to categorise all the offences into
one group and deny bail on that basis.
Suffice it to state that law, as laid down
inthe following judgments, will govern the
field:-
91. P. Chidambaram v. Directorate of
Enforcement:
23. Thus, from cumulative perusal of the
judgments cited on either side including the
one rendered by the Constitution Bench of
this Court, it could be deduced that the
basic jurisprudence relating to bail remains
the same inasmuch as the grant of bail is
the rule and refusal is the exception so as
to ensure that the accused has the
opportunity of securing fair trial. However,
while considering the same the gravity of
the offence is an aspect which is required
to be kept in view by the Court. The gravity
for the said purpose will have to be
gathered from the facts and circumstances
arising in each case. Keeping in view the
consequences that would befall on the
society in cases of financial irregularities, it
has been held that even economic
offences would fall under the category of
"grave offence" and in such circumstance
while considering the application for bail
in such matters, the Court will have to
deal with the same, being sensitive to the
nature of allegation made against the
accused. One of the circumstances to
consider the gravity of the offence is also
the term of sentence that is prescribed for
the offence the accused is alleged to have
committed. Such consideration with
regard to the gravity of offence is a factor
which is in addition to the triple test or the
tripod test that would be normally applied.
In that regard what is also to be kept in
.
perspective is that even if the allegation is
one of grave economic offence, it is not a
rule that bail should be denied in every
case since there is no such bar created in
the relevant enactment passed by the
legislature nor does the bail jurisprudence
provide so. Therefore, the underlining
conclusion is that irrespective of the
nature and gravity of charge, the
precedent of another case alone will not
be the basis for either grant or refusal of
bail though it may have a bearing on
principle. But ultimately the consideration
will have to be on case-to-case basis on
the facts involved therein and securing
the presence of the accused to stand
trial."
7. A perusal of the abovementioned judgment
indicates that even if the allegation is one of the grave
economic offence, it is not a rule that the bail should be
denied in every case. The object of bail is neither punitive
nor preventive, but to secure the presence of the accused at
the trial. The person who has not been convicted should be
held in custody pending trial only to ensure his attendance
at trial; and to ensure that the evidence is not tampered with
and the witnesses are not threatened. If there is no
apprehension of interference in administration of justice in a
criminal trial by an accused then, he should not be deprived
of his liberty. Only a vague belief that he will tamper with
evidence and flee from justice cannot be a ground to deprive
.
a person of his liberty.
8. In the case on hand, the petitioners/accused are
on interim bail. This court is conscious of the fact that they
are allegedly involved in the commission of economic
offences. But at the same time, this court cannot lose sight
of the fact that the investigating agency has already
completed investigation qua them and their custodial is not
required as per the status report filed by the Investigating
Agency. In the status report it has been averred that after
the investigation, initially charge sheets were meticulously
crafted against three key individuals-Hemraj, Sukhdev and
Abhishek on November 30, 2023. Subsequently, a
supplementary chargesheet was prepared, unveiling the
involvement of sixteen additional individuals, i.e., Radhika
Sharma, Amit Pradeep Singh, Dig Vijender Singh, Kewal
Singh, Paras Ram Sen, Sanjay Kumar, Govind Goswami,
Naresh Kumar, Gurdeep, Neel Dheeman, Sunil Kumar
Chandrani, Ram Kumar Rana, Balbir Singh, Krishan Dutt,
Jyoti and Vijay Kumar on 19.12.2023. Additionally, another
supplementary chargesheet was meticulously prepared,
unveiling the involvement of Praveen Kumar on 22.03.2024.
It has also been averred in the status report that the
.
investigation against the petitioners is complete and no
further custody of them is required.
9. As observed earlier, admittedly the investigation
in the case qua the petitioners is complete and their custodial
interrogation is not required. The evidence is mainly
documentary in nature and all the relevant documents are
within the custody of the prosecution, therefore, there is no
likelihood of tampering of evidence by the petitioners. The
prosecution has failed to produce any material on record to
suggest that the petitioners will abscond and flee from
justice, if enlarged on bail. The petitioners have deep roots in
the society and they are permanent residents of the State of
Himachal Pradesh
10. Hence, after going through the material available
on record and considering the overall facts and
circumstances of the case, this Court finds that the present is
a fit case where judicial discretion to admit the petitioners on
bail is required to be exercised in their favour. The
apprehension expressed by the investigating agency can be
safeguarded by imposing certain stringent conditions that will
meet the ends of justice. Accordingly, all the bail applications
are allowed and it is ordered that the petitioners, in the event
.
of their arrest, in case FIR No. 120/2023, dated 24.09.2023,
registered at Police Station Palampur, District Kangra, H.P.
under Sections 420, 120-B of IPC, read with Section 5 of the
Himachal Pradesh Protection of Interests of Depositors (in
Financial Establishments) Act, 1999 and Sections 21 & 23 of
the Banning of Unregulated Deposit Schemes Act, 2019,
shall be forthwith released on bail, subject to their furnishing
personal bond to the tune of Rs. 5,00,000/- (Rupees five
lacs) each, with two sureties (each) in the like amount, to the
satisfaction of the Investigating Officer. This bail order is
subject, however, to the following conditions:-
"(i) that the petitioners will appear before
the Court and the Investigating Officer
whenever required;
(ii) that they will not directly or indirectly
make any inducement, threat or promise to
any person acquainted with the facts of the
case so as to dissuade him/her from
disclosing any facts to the Court or the
police;
(iii) that they will not indulge in the
business of sale/purchase of crypto
currency;
(iv) that they will not transfer, alienate or
encumber their movable and immovable
property, if any;
(v) that they will not tamper with the
prosecution evidence nor they will try to win
over the Prosecution witnesses or terrorise
them in any manner;
(vi) that they will not deliberately and
.
intentionally act in a manner which may
tend to delay the investigation or the trial of
the case; &
(vii) that they will not leave India without
prior permission of the Court and they shall
deposit their passports with the SHO, Cyber
Crime Police Station, Northern Range,
Dharamshala, District Kangra, H.P., if not
seized by the police."
11.
Needless to say that the Investigating agency
shall be at liberty to move this Court for cancellation of the
bail, if any of the aforesaid conditions is violated by the
petitioners.
12. Be it stated that any expression of opinion given
in this order does not mean an expression of opinion on the
merits of the case and the trial Court will not be influenced by
any observations made therein.
( Sushil Kukreja )
___May, 2024 Judge
( virender )
