Punjab-Haryana High Court
Mustakeem Alias Dema vs State Of Haryana on 1 February, 2024
Neutral Citation No:=2024:PHHC:013772
CRM-M-4227-2024 -1-
2024:PHHC:013772
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
217 CRM-M-4227-2024
Date of Decision :February 01, 2024
MUSTAKEEM ALIAS DEMA .....Petitioner
VERSUS
STATE OF HARYANA .....Respondent
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present : Mr. Saleem Ahmed, Advocate
for the petitioner.
Mr.Abhinash Jain, DAG, Haryana.
KULDEEP TIWARI. J.(Oral)
1. Through the instant petition, the petitioner craves for
indulgence of this Court for his being enlarged on regular bail, in case
FIR No.40, dated 18.09.2023, under Sections 419, 420, 467, 468, 471 and
120-B of the IPC, registered at Police Station Cyber Crime, Nuh, District
Nuh.
ALLEGATIONS AGAINST THE PETITIONER
2. The gist of the allegations, as recorded by the learned trial
Court concerned, while declining the bail to the petitioner, vide order
dated 19.12.2023, reads as under:-
"2. The case of the prosecution in brief is that on 18.09.2023 police
received secret information that the present applicant used to cheat the
public persons by making calls from fake mobile phone Sims and by
showing photographs of some girls. On the basis of secret information,
the applicant was arrested on the basis of signal given by secret
informer. On personal search, two mobile phones were recovered from
the applicant. In one mobile phone, two Sims numbers 9050254533,
8708268597 were found. One Whatsapp account no. 7027830572 with
profile name as "Priya" and photo of a girl was also found in the
mobile phone. Some obscene chats regarding providing of girls for sex
and some video clips were also found in his mobile phone. One
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Phonepe account was found connected with mobile phone no.
8708268597. On checking some suspected transactions, obscene
photos, obscene videos were also found in the mobile phone. Two
Apps namely "Temp-mail" and "Singapore VPN" were also found
installed in the mobile phone.
3. In the second mobile phone recovered from the applicant, one
mobile Sim no. 7027830572 and whatsapp account no. 8708268597
were found. Three Apps namely "Separate Chat live", "Temp-mail"
and "Singapore VPN" were found installed in the said mobile phone.
The mobile phone was got checked from Cyber Cell and it was found
that mobile phone no. 7027830572 is in the name of Sanjay son of
Kullu resident Murthal, District Sonipat."
SUBMISSIONS OF LEARNED COUNSEL FOR THE
PETITIONER
3. Learned counsel for the petitioner submits that no fake sim
card was recovered from the petitioner, whereas, the alleged recovered
mobile phone was forcibly implanted upon the petitioner.
4. He further submits that there is no complaint made by any
victim, who was cheated by the present petitioner, and in the absence of
any complaint by any of the victim, no offence whatsoever, under the
provisions of Section 420 IPC is made .
5. He next submits that all the offences mentioned in the FIR
are triable by a magistrate, and conclusion of the trial would take long
time.
6. He further submits that the petitioner has already undergone
a custody of approximately 4 ½ months as on today, and the trial is in
midway which would take long time in its conclusion.
SUBMISSIONS OF THE LEARNED STATE COUNSEL
7. Per contra, the learned State counsel opposes the asked for
relief of grant of regular bail, on the ground that, the instant FIR was
registered on dated 18.09.2023, on a secret information that the
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petitioner/ accused used to cheat the public by making fake calls from
fake mobile numbers/sim cards and by showing photographs of some
girls.
8. He further submits that during investigation, the petitioner
was arrested, and from his personal personal search, two mobile phones
were recovered, in one mobile phone, two Sims numbers 9050254533,
8708268597 were found and one Whatsapp account no. 7027830572 with
profile name as "Priya", and photo of a girl was also found in the said
mobile phone. Further, some obscene chats of providing girls for sex, and
some video clips were also found in the said mobile phone. One Phonepe
account was also found connected with the said mobile phone no.
8708268597. Further, he submits that on checking the same, some
suspected transactions, obscene photos, obscene videos were also found
in the mobile phone, and two Apps namely "Temp-mail" and "Singapore
VPN" were also found installed in the said mobile phone.
9. Therefore, the petitioner does not deserve the concession of
regular bail as the petitioner has been indulged in the activity of cheating
innocent persons.
10. He also files a custody certificate qua the petitioner, which is
taken on record, and, it reflects that the petitioner has suffered
incarceration of 4 months and 13 days as on today, and, he is not
involved in any other criminal case.
11. Learned State counsel, on instructions imparted to him by
HC Dinesh, informs this Court that the final report has already been filed
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on dated 08.12.2023, but the charges are yet to be framed, and there are
total 13 prosecution witnesses cited by the prosecution in the final report.
ANALYSIS
12. "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.
13. 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.
14. 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
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
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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 the court
unfettered. According to the High Court, the variety of
cases that may arise from time to time cannot be safely
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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
will govern the exercise of judicial
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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."
15. 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
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dovetails two conflicting interests namely, on the one
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.
16. This Court has examined the instant petition on the
touchstone of the hereinabove extracted settled and legal principle(s) of
law and is of the considered opinion that the instant petition is amenable
for being allowed.
FINAL ORDER
17. Considering the fact that the petitioner has suffered
incarceration of 4 months and 13 days, and as per his antecedent, he is
not involved in any other criminal case, coupled with the fact that no
victim has come forward, alleging that he has been cheated by the
present petitioner, and, it is a magisterial trial which is yet to begun as
charges have yet not been framed, 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.
18. However, it is clarified that if in future, the petitioner is
found indulging in commission of similar offences, as are involved
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herein, the respondent-State shall be at liberty to make an appropriate
application seeking cancellation of regular bail, as granted by this Court.
Moreover, anything observed here-in-above shall have no effect on the
merits of the trial and is meant for deciding the present petition only.
(KULDEEP TIWARI)
February 01, 2024 JUDGE
dharamvir
Whether speaking/reasoned. : Yes/No
Whether Reportable. : Yes/No
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