Vipan Kaushal Alias Karan Sharma And Anr vs State Of Ut Chandigarh And Anr
2023 Latest Caselaw 21739 P&H

Punjab-Haryana High Court

Vipan Kaushal Alias Karan Sharma And Anr vs State Of Ut Chandigarh And Anr on 13 December, 2023

                                                      Neutral Citation No:=2023:PHHC:159644




                                                             2023:PHHC:159644
CRM-M-48456-2023                                                      -1-


       IN THE HIGH COURT OF PUNJAB AND HARYANA
                    AT CHANDIGARH

215                                              CRM-M-48456-2023
                                         Date of Decision : December 13, 2023

VIPAN KAUSHAL ALIAS KARAN SHARMA & ANR
                                                                   .....Petitioners

                                    VERSUS

STATE OF U.T. CHANDIGARH & ANR
                                                                .....Respondents

CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI

Present :    Mr. Premjit S. Hundal, Advocate
             for the petitioners.

             Mr. Ankur Bali, Additional A.P. U.T. Chandigarh.

KULDEEP TIWARI. J.(Oral)

1. Through the instant petition, the petitioners craves for

indulgence of this Court for his being enlarged on regular bail, in case FIR

No. 95 dated 22.05.2023, under Sections 420, 467, 468, 471 and 120-B IPC,

and under Section 24 of the Immigration Act, registered at Police Station 39,

District Chandigarh.

ALLEGATIONS AGAINST THE PETITIONER

2. The allegations, against the petitioner as culled out by the

learned Additional Sessions Judge, Chandigarh, while declining his

regular bail application, vide order dated 14.09.2023, reads as under:-

"FIR detailed above was registered on the complaint of Gurdeep Singh Grewal r/o Ward No.4, Morinda, Distt. Rupnagar against Karan Sharma and Preeti (applicant Shalu Rani) the owner/proprietor of Planet Visa Solution, SCO No.393, 2nd Floor, sector 37-D, Chandigarh

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regarding fraud and cheating in which he reported that Karan Sharma and Preeti cheated him to the tune of Rs.10 lacs to provide visa for Canada along with air ticket from Delhi. These documents were found fake."

SUBMISSIONS           OF      LEARNED           COUNSEL           FOR         THE
PETITIONER

3. The learned counsel for the petitioner, in his asking for the

hereinabove extracted relief, has made the following submissions:-

((i) Petitioner has been falsely implicated in the

present case;

(ii) Charges against the petitioner have been framed

under Section 420 and 120-B of IPC and so far as

the rest of the offences, charges are framed only qua

the co-accused;

(iii) Petitioner was arrested on 23.05.2023, and she

has been in custody since then;

(iv) Petitioner has undergone incarceration of about

06 months and 18 days.

SUBMISSIONS OF THE LEARNED STATE COUNSEL

4. Per contra, the learned State counsel, who is in receipt of

advance notice, has placed on record the custody certificate of the petitioner,

as issued by the Additional Superintendent, Model Jail, Chandigarh. A

perusal of the custody certificate reveals that the petitioner is involved in one

more case i.e. FIR No.94 dated 22.05.2023, under Sections 420 and 120-B of

IPC and under Section 24 of the Immigration Act, registered at Police

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Station Sector 39, Chandigarh. Learned State counsel, on instruction submits

that, out of total 11 prosecution witnesses, only one witness has been

examined till date. Learned State counsel further submits that the next date

of hearing before the learned trial Court is dated 18.12.2023, for recording of

the statement of other prosecution witnesses.

ANALYSIS

5. "Bail is the Rule and Jail is an Exception". This basic

principle of criminal jurisprudence was laid down by the Hon'ble

Supreme Court, way back in 1978, in its landmark judgment titled "State

of Rajasthan V. Balchand alias Baliay", 1977 AIR 2447, 1978 SCR (1)

535. This principle finds its roots in one of the most distinguished

fundamental rights, as enshrined in Article 21 of the Constitution of India.

Though the underlying objective behind detention of a person is to ensure

easy availability of an accused for trial, without any inconvenience,

however, in case the presence of an accused can be secured otherwise,

then detention is not compulsory.

6. The right to a speedy trial is one of the rights of a detained

person. However, while deciding application for regular bail, the Courts

shall also take into consideration the fundamental precept of criminal

jurisprudence, which is "the presumption of innocence", besides the

gravity of offence(s) involved.

7. In "Nikesh Tarachand Shah V. Union of India", (2018) 11

SCC 1, the Hon'ble Supreme Court has recorded the following:-

"14. In Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 at 586-588, the purpose of granting

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bail is set out with great felicity as follows:-

"27. It is not necessary to refer to decisions which deal with the right to ordinary bail because that right does not furnish an exact parallel to the right to anticipatory bail. It is, however, interesting that as long back as in 1924 it was held by the High Court of Calcutta in Nagendra v. King-Emperor the object of bail is to secure the attendance of the accused at the trial, that the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial and that it is indisputable that bail is not to be withheld as a punishment. In two other cases which,significantly, are the 'Meerut Conspiracy cases' observations are to be found regarding the right to bail which deserve a special mention. In K.N. Joglekar v. Emperor [AIR 1931 All 504 : 33 Cri LJ 94] it was observed, while dealing with Section 498 which corresponds to the present Section 439 of the Code, that it conferred upon the Sessions Judge or the High Court wide powers to grant bail which were not handicapped by the restrictions in the preceding Section 497 which corresponds to the present Section

437. It was observed by the court that there was no hard and fast rule and no inflexible principle governing the exercise of the discretion conferred by Section 498 and that the only principle which was established was that the discretion should be exercised judiciously. In Emperor v. Hutchinson [AIR 1931 All 356, 358 : 32 Cri LJ 1271] it was said that it was very unwise to make an attempt to lay down any particular rules which will bind the High Court, having regard to the fact that the legislature itself left the discretion of

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the court unfettered. According to the High Court, the variety of cases that may arise from time to time cannot be safely classified and it is dangerous to make an attempt to classify the cases and to say that in particular classes a bail may be granted but not in other classes. It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence.

28. Coming nearer home, it was observed by Krishna Iyer, J., in Gudikanti Narasimhulu v. Public Prosecutor [(1978) 1 SCC 240 : 1978 SCC (Cri) 115] that: (SCC p. 242, para 1) "... the issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitized judicial process. . . . After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of procedure established by law. The last four words of Article 21 are the life of that human right."

29. In Gurcharan Singh v. State (Delhi Administration) [(1978) 1 SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J., who spoke for the court, that: (SCC p. 129, para 29) "There cannot be an inexorable formula in the matter of granting bail. The facts and circumstances of each case

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will govern the exercise of judicial discretion in granting or cancelling bail."

30. In AMERICAN JURISPRUDENCE (2d, Volume 8, p. 806, para 39), it is stated:

"Where the granting of bail lies within the discretion of the court, the granting or denial is regulated, to a large extent, by the facts and circumstances of each particular case. Since the object of the detention or imprisonment of the accused is to secure his appearance and submission to the jurisdiction and the judgment of the court, the primary inquiry is whether a recognizance or bond would effect that end."

It is thus clear that the question whether to grant bail or not depends for its answer upon a variety of circumstances, the cumulative effect of which must enter into the judicial verdict. Any one single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail."

8. Also, in Siddharam Satlingappa Mhetre v. State of

Maharashtra, Criminal Appeal No.2271 of 2010, the Hon'ble Supreme

Court has insisted upon striking a perfect balance of sanctity of an

individual's liberty as well as the interest of the society, in grant or

refusing bail. The relevant extract of the judgment (supra) is reproduced

hereinafter:-

3. The society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests namely, on the one

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hand, the requirements of shielding the society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand absolute adherence of the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty.

9. This Court has examined the instant petition on the

touchstone of the hereinabove extracted settled legal principle(s) of law

and is of the considered opinion that the instant petition is amenable for

being allowed.

10. The reason for forming the above inference emanates from

the factum that:- (i) as per custody certificate (supra), the petitioner is

involved in only one more FIR of similar nature; (ii) It is not under

dispute that the instant offences are triable by Judicial Magistrate First

Class; (iii) no fruitful purpose would be served by keeping the petitioner

behind the bars, who undergone actual custody of approx. 6 months and

18 days; (iv) trial is not likely to conclude anytime soon.

FINAL ORDER

11. Considering the hereinabove made discussion, this Court

deems it appropriate to grant the concession of regular bail to the

petitioner. Therefore, without commenting upon the merits and

circumstances of the present case, the present petition is allowed. The

petitioner is ordered to be released on bail on furnishing of bail bond and

surety bond to the satisfaction of concerned Chief Judicial Magistrate/trial

Court/Duty Magistrate.

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12. However, anything observed here-in-above shall have no

effect on the merits of the trial and is meant for deciding the present

petition only.

13. All pending application(s) stand disposed of accordingly.

                                          (KULDEEP TIWARI)
December 13, 2023                              JUDGE
monika
          Whether speaking/reasoned.          :      Yes/No
          Whether Reportable.                 :      Yes/No

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