Punjab-Haryana High Court

Vishal vs State Of Haryana on 5 December, 2023

Author: Jasjit Singh Bedi

Bench: Jasjit Singh Bedi

                                                    Neutral Citation No:=2023:PHHC:156092




                                                           2023:PHHC:156092

CRM-50325-2023
in CRM-31100-2023 (O & M)                                                        ::1::
(101-a)



 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                      CRM-50325-2023
                      in CRM-M-31100-2023 (O & M)
                      Date of decision:05.12.2023

Vishal                                                        ...... Petitioner
           V/s

State of Haryana                                                 ...Respondent

CORAM: HON'BLE MR. JUSTICE JASJIT SINGH BEDI

Present:     Mr. Anuj Kumar, Advocate,
             for the applicant-petitioner.

             Mr. Kanwar Sanjiv Kumar, AAG, Haryana.

             Mr. Pawan Kumar Hooda, Advocate,
             for the complainant.

                 *****
JASJIT SINGH BEDI, J. (Oral)

CRM-50325-2023

This is an application seeking advancement of next date of

hearing i.e. 22.04.2024 fixed in the main case to some earlier date.

For the reasons mentioned in the application, same is allowed

and the next date of hearing fixed in the main case is advanced to today i.e.

05.12.2023 and the matter is taken up for hearing.

CRM-M-31100-2023

The prayer in the present petition under Section 438 Cr.P.C. is

for the grant of anticipatory bail to the petitioner in case FIR No.166 dated

15/05/2023 (Annexure P-1) under Sections 406, 420, 506, 34 IPC (Sections

467, 468 and 471 IPC and Section 24 of the Emigration Act, 1983 added

later on) registered at Police Station Rohtak Sadar, District Rohtak.


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2. The present FIR came to be registered at the instance of Vijay

Kumar who stated that the name of his uncle was Surender who was known

to the accused persons. In 2019 all the accused came to his house and Sunil

@ Sheela told his (complainant's) brother-Baljeet that he could send him

(complainant) to America as his wife-Sonia lived in Spain and his brother's

friend Vishal @ Sandhu (petitioner) were in the business of sending people

abroad. Rs.35 lacs was the cost for the same. In December 2019, Sunil took

his (complainant's) various documents such as passport, mark-sheets,

Aadhar Card, PAN Card alongwith Rs.1.50 lacs and stated that the balance

amount was to be paid when he (complainant) reached America. He

(complainant) also attended a Course of CDC where he met Ravi and Vishal

(petitioner) on a number of occasions. On 21.07.2022, he (complainant)

received a call from Sunil that his U.S. Visa had been approved and a

demand of Rs. 8 lacs was made. On 26.07.2022, Rs. 8 lacs were handed over

to Sunil. On 20.08.2022, the demand of the remaining amount was made.

As his (complainant's) father did not have the balance amount, they

(complainant party) entered into an agreement to sell their land with one

Mehtab and received a sum of Rs.30 lacs. On 04.09.2022, Sunil, Sonia and

Vishal (petitioner) dropped him to the Airport and received the balance

amount at his (complainant's) house. However, when he reached America,

he was deported back immediately as his documents were found to be

forged. On his returning back to the Delhi Airport, he (complainant) met

Sunil and his wife alongwith his (complainant's) brother Baljeet. The

accused assured him that they would send him to Spain within one month

and took all his documents. However, he was not sent abroad and nor did

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the accused return his CDC certificate, passport and Merchant Navy

certificates. On a demand for the return of the amount spent being made,

Rs.9,50,000/- was handed back through his uncle-Surender alongwith

another amount of Rs.5 lacs. However, the rest of the money was not repaid.

On the contrary, his documents had been taken away and a forged Dubai

Visa had been pasted upon his passport.

During investigation on 16.05.2023, Sanjay (uncle of the

complainant) produced a Pen Drive containing the audio recording of a

telephonic conversation between the complainant, co-accused/Sunil @

Sheela and Sanjay

On 17.05.2023 the complainant submitted certain documents to

the I.O. and got recorded his additional statement. A per that documents, the

complainant had been sent to America and the American Immigration

Department had sent him back from the Airport on fining the documents

forged and accordingly Section 24 of the Immigration Act was added in the

present case.

An application for obtaining the call details of the records of the

mobile phone used by the accused and the complainant party was moved and

while part of the record was obtained but some of the record is still awaited.

Bank records were also obtained, as per which a sum of

Rs.1,02,000/- had been transferred in the account of the petitioner/Vishal

through phone application.

As per the call detail records, mobile conversation took place

between the complainant and the co-accused/Sunil @ Sheela. As per

investigation, he had prepared the forged documents and had grabbed a huge

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amount from the complainant. On the basis of the documents collected

during investigation, Sections 467, 468 and 471 IPC were added in the

present case.

3. The learned counsel for the petitioner contends that the

petitioner had been falsely implicated in the present case. The accused had

received an amount of only Rs.25 lacs and not Rs.35 lacs as alleged. The

petitioner himself had received only Rs.1,02,000/- for the course of CDC

which was mandatory prior to applying a work Visa in the U.S. The

complainant had received a valid and legal Visa from the United States

which had been approved by the Embassy of the U.S. after going through all

the documents. The complainant had concealed the fact that he had been

deported from the America because of his own conduct as he was in drunken

condition and failed to behave appropriately with the officers of the

Immigration Department. The complainant had concealed the order through

which he had been deported and had failed to produce any document which

was fabricated by the petitioner. The family members of the complainant

had admitted the fault of the complainant and had requested to return the

amount except the expenses incurred at the time of the Visa. The co-accused

of the petitioner had agreed to pay a sum of Rs.20 lacs. A sum of Rs.15 lacs

had been paid to the complainant and the remaining amount of Rs.5 lacs had

to be paid till 25.07.2023. However, the present FIR came to be registered

with the collusion of the relatives of the complainant on account of his

greed.

4. The learned counsel for the State and the learned counsel for

the complainant while referring to the reply dated 07.07.2023, however,

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contend that serious allegations had been levelled against the petitioner. The

money had been received by the petitioner and his co-accused. However, a

forged Visa had been provided to the complainant because of which on

landing in America, he was deported back. Only Rs. 14,50,000/- had been

returned against Rs.35 lacs paid by the complainant and his family members

to the accused. The accused in conspiracy with each other had got the seal

of another country pasted on the passport of the complainant to show that he

had not gone to America despite the fact that the complainant had never been

to the said country. All the relevant documents including the passport of the

complainant were in the possession of the accused. Even otherwise the

petitioner was a habitual offender with one other case being registerd against

him bearing FIR No.06/2019 under Sections 420, 467, 471, 120-B IPC and

the Passport Act, Police Station Crime Gandhi Nagar, Gujarat. As the

offence was prima facie established and the recovery of the relevant

documents was to be effected from the petitioner and his co-accused, he was

not entitled to the grant of pre-arrest bail and therefore, the present petition

was liable to be dismissed.

5. I have heard the learned counsel for the parties.

6. The Hon'ble Supreme Court in the case of 'Sumitha Pradeep

Vs. Arun Kumar C.K. & Anr. 2022 Livelaw (SC) 870' has held that merely

because custodial interrogation was not required by itself could not be a

ground to grant anticipatory bail. The first and the foremost thing the Court

hearing the anticipatory bail application is to consider is the prima facie case

against the accused. The relevant extract of the judgment is reproduced

hereinbelow:-

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"It may be true, as pointed out by learned counsel appearing for Respondent No.1, that charge-sheet has already been filed. It will be unfair to presume on our part that the Investigating Officer does not require Respondent No.1 for custodial interrogation for the purpose of further investigation.

Be that as it may, even assuming it a case where Respondent No.1 is not required for custodial interrogation, we are satisfied that the High Court ought not to have granted discretionary relief of anticipatory bail.

We are dealing with a matter wherein the original complainant (appellant herein) has come before this Court praying that the anticipatory bail granted by the High Court to the accused should be cancelled. To put it in other words, the complainant says that the High Court wrongly exercised its discretion while granting anticipatory bail to the accused in a very serious crime like POCSO and, therefore, the order passed by the High Court granting anticipatory bail to the accused should be quashed and set aside. In many anticipatory bail matters, we have noticed one common argument being canvassed that no custodial interrogation is required and, therefore, anticipatory bail may be granted. There appears to be a serious misconception of law that if no case for custodial interrogation is made out by the prosecution, then that alone would be a good ground to grant anticipatory bail. Custodial interrogation can be one of the relevant aspects to be considered along with other grounds while deciding an application seeking anticipatory bail. There may be many cases in which the custodial interrogation of the accused may not be required, but that does not mean that the prima facie case against the accused should be ignored or overlooked and he should be granted anticipatory bail. The first and foremost thing that the court hearing an anticipatory bail application should consider is the prima facie case put up against the

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accused. Thereafter, the nature of the offence should be looked into along with the severity of the punishment. Custodial interrogation can be one of the grounds to decline custodial interrogation. However, even if custodial interrogation is not required or necessitated, by itself, cannot be a ground to grant anticipatory bail."

7. A perusal of the FIR and the investigation conducted so far

would establish that the petitioner and his co-accused received a sum of

about Rs.35 lacs to send the complainant to USA. However, when he

reached there, he was deported back on account of the fact that his Visa was

found to be forged. The co-accused of the petitioner, namely, Sunil @

Sheela has admitted that he had promised to return a sum of Rs.20 lacs

which had been taken by him. Therefore, the accused themselves have

partly accepted the allegations. Further, it is the case of the prosecution that

the accused had got pasted a forged Visa of another country to show that the

complainant had not gone to America. Therefore, the offence stands prima

facie established. Even otherwise, the recovery of various documents

including the passport of the complainant is to be effected from the