Punjab-Haryana High Court
Mehak Kapoor vs State Of U.T. Chandigarh on 18 November, 2024
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2024:PHHC:149966
CRM-M-57027-2024 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
316 CRM-M-57027-2024
DATE OF DECISION: 18.11.2024
MEHAK KAPOOR ...PETITIONER
Versus
STATE OF U.T. CHANDIGARH ... RESPONDENTS
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Amit Khumar Dhiman, Advocate for the petitioner(s).
Mr. Vivek Singla, APP for UT Chandigarh
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
This petition has been filed under Section 483 of B.N.S.S
2023 for grant of regular bail to the petitioner in FIR No. 0092 Dated
10.08.2024 Under Section 406, 409, 420, 467, 468, 471 & 120-B IPC,
registered at Police Station : Cyber Crime, District: Chandigarh.
2. Prosecution story set up in the present case as per the version
in the FIR reads as under :-
'Statement of Ganesh Mal s/o Lt. Sh. Shankar Lal r/o Vill
Khinyala, Tehsil Jalyal PS Jayal, Distt. Nagour (RJ) age 52 years,
M.No. 6367702594. Stated that I reside at the above address
alongwith my family. And do the work of Carpenter in my village
itself. In April 2024, I saw the add of one Visa Company Global
Consultant SCO No. 292, 1st Floor, Sec 32-D, Chandigarh on my
Facebook ID and called on the M.No. 7529864834 given in this
add. One girl picked the phone and told that their company do the
work of sending to Azerbaijan and told her name as Gazal Kapoor
and for getting more information called in office Chd. I along with
my son-in-law (Damad) Vikas came to their office Sec 32D on
25.4.24, met Gazal Kapoor. At that time in her office, three girls
and two boys were working, they told us that they send group of
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25/30 persons for working in Azerbaijan, in which Carpenter,
labourer, anyone can be there and the total expenses for sending to
Azerbaijan will come to Rs. 1,35,000/- per head. In which they will
get done the entire process, Air Ticket etc, in the same and will also
provide them work upno reaching at Azerbaijan and their
Azerbaijan salary will be Rs. 1 lakh per month. She also said that
half money after offer letter and rest of the money will have to be
given upon getting visa. I found their offer to be good and as group
was going, then I told about the same to the persons of my village
and to some known persons of the adjoining villages. For the
same, some from my village and some from other village got ready.
Regarding the same, I talked with Ghazal Kapoor in the above Visa
company. She told us to send our respective Passport through
courier. In the beginning, I sent her Passport of 5 persons through
post and through Whats app. The above company, for these five
Passport, for one EVRASCON Company made Offer letter of
Azerbaijan and sent the same on Whats app to me. After that they
demanded Rs. 25,000/- from me. As per their asking, on 28.5.2024
I sent the same on their UPI ID- gaggarwal206-1@oksbi, which
was in the name of Shubham, from my daughter Saraswati's A/c
No. 83010221250, Rajasthan Marudhar Gramin Bank through
Google pay. I showed this Offer letter to my other acquaintance
and told them, then they also became ready. Apart from us 5
persons, whose Offer letter had come, other persons became ready
to go to Azerbaijan and they also gave their respective Passport to
me. I also sent the same to the above Grobal Consultant Company
Chd through Whats app and Post. They also sent their offer letter
to me on Whats app, after that they started saying that you all have
to give Rs. 50000/- now. On 9.6.24, 1 sent Rs. 50000/- on their
above UPI ID from the above A/C of my daughter Online. After
that they again telephonically called on 9.6.24 that you Visa has
come, you come and deposit your half money. On 10.6.24, I along
with my five fellows Pappu Ram, Kamal, Dwarka Parsad and
Driver Suresh came to their office Sec 32D Chd and gave Rs.
1109000/- to them in cash as per their asking. They made a receipt
of the same and gave it to me and on 10.6.24, itself myself from my
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daughter Saraswati's above A/c Rs. 50000/- 50000/- 9000
109000/-, from Surender's A/c 15000/-, 60000/-, 25000/-, 15000/-,
25000/- 140000/- and from Dwarka Parsad A/c 50000/- and from
E-Mitra ID 49000/- 49000/- 40000/- 1999 Total Rs. 139999/-, sent
the same on the above UPI ID Shubham given by them online.
Which in total comes to 438999/-. After that they told that your
ticket is ready for 15.6.24 and give the balance amount. For
sending total 27 persons, talk took place for Rs. 35,00000/-
(Thirty-five lakh). Then on 11.6.24, myself from the A/c of my
daughter Saraswati, as per their asking sent 50000/- 50000/-
100000/- in UPD ID of Shubham and from A/c of Ramvilas I the
A/c of above Subham 49000/- 2000/- 48000/- 99000/- and from E-
Mitra Rs. 50000/- were sent in Kamal's UPI ID gaggarwal206-
1@oksbi. On 11.6.24, total Rs. 2,49,000/- were sent to their A/c
online. On 12.06.2024, from E-miter 49000/- in the A/c of Subham
given bythem and 50000/-in A/c of Kamal, Total Rs. 99000/- were
sent Online. After that they by taking the total amount in cash,
called to their office and told us regarding giving Ticket and Visa.
On 13.6.24, I along with my son-in-law (Damad) Vikas came to
their office ad Chd and gave them Rs. 1300000 (Thirteen lakh)
rupees in cash. They had not given any receipt of the same to us
and gave us Visa, Passport and Air Ticket of everyone and started
saying that we have given all your documents to you, there is no
need of its Receipt because Tax is applicable on the same and the
remaining 46000/- 46000/- 50000, 142000/- were deposited from
the A/c of Saraswati in the A/c of their above Shubham and Rs.
40000/- were deposited in the above A/c through E-mitra. After
that Rs. 40000/- were deposited in their above A/c from the A/c of
Hukma Ram. In this manner, we by completing 3500000/-, gave the
same to them. Our Ticket of 15.6.24 was from Delhi Airport. When
we all 25 persons reached Delhi Airport then we came to know that
our Ticket has been made in Duplicate. When we tried to call them,
then all their numbers were off. They are having some other mobile
n. 7888738567, 7529864834 and 8360819841 and 9115139787
and the Email ID given on their card is
[email protected]. Myself and other 26 persons with
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whom cheating has been committed. Their names are 1. Girdhari
Jangir, Village Keshap 2. Dwarka Parsad Village Khilaya 3.
Bhawar lal Meghwal village Sagu 4. Rupa Ram Meghwal, Village
Keshap 5. Sayar Ram Nayak Village Keshap 6. Suresh Meghwal
Village Keshap 7. Lodo Ram Meghwal Village sagu 8. Jeevan Ram
nai Village Deh 9. Shivram Village Kathoti, 10. Gopal Chati
Village Khiyala 11. Babulal Jangir Village
Kiyala, 12. Jetharam Jangir Village Ran Sisar 13. Kamal Kishore
Rewar Village Rojond, 14. Kishore Nayak Village Keshap, 15.
Paban Kumar Village Keshap 16. Ram Singh, Village Sagu 17.
Ashok Kumar Village Keshap, 18. Choturam Village SAgu, 19.
Jagdish Village Khiyala, 20. Vikas Jagir Village Dehri, 21. Arjan
Ram Village Igyar (Adwad), 22. Kamal Village Khiyala 23.
Kanihya Lal village Adwad, 24. Rattan Lal, Village Khund, 25.
Ravishankar Village Dugoli, 26. Ashok Vidyasar Village Khiyala,
27. Banwari Lal Sain Village Akhrot. They refused to send me and
Gopal Rathore. The persons of above Visa Company Global
consultant have committed cheating of about Rs. 3500000/- Thirty-
five lakh rupees in the name of sending us to Azerbaijan and by
preparing wrong documents, have prepared fake documents. Now
they have fled away somewhere by closing their office. Legal
action be taken against all these persons. Got recorded the
statement, hard it, read it, it is correct.'
3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner has argued that the
petitioner has been falsely implicated in the present case and there was
inordinate delay of 2 months in lodging the FIR. He submits that the
petitioner was not named in the FIR and no specific allegation has been
levelled against her. He further submits that no amount whatsoever was
received by her, therefore, she was not beneficiary of any such
transactions which is otherwise as per the prosecution itself was made to
co-accused Shubham and others. Moreso, no incriminating material has
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been produced by the prosecution against her for committing such offence.
He has further argued that the antecedents of the petitioner are clean.
On behalf of the counsel for UT Chandigarh
On the other hand, learned Counsel for UT Chandigarh
appearing on advance notice, accepts notice on behalf of respondent and
has filed the custody certificate of the petitioner, which is taken on record.
According to which, the petitioner is behind bars for 2 months and 16
days.
He on instructions from the Investigating Officer opposes
the prayer for grant of regular bail stating that the petitioner is a part of
fraudsters who committed fraud with the complainant by forging the
documents as well as collecting the money but is not in a position to
controvert the submissions made by learned counsel for the petitioner.
4. Analysis
Be that as it may, in light of the asserted facts and on a
perusal of the FIR this Court is convinced that no fruitful purpose would
be served by keeping the petitioner in custody who have already suffered
incarceration for 2 months and 16 days, antecedents of the petitioner are
clean, meaning thereby she is not a habitual offender, and as per the
principle of the criminal jurisprudence, no one should be considered
guilty, till the guilt is proved beyond reasonable doubt.
Reliance can be placed upon the judgment of the Apex Court
rendered in "Dataram versus State of Uttar Pradesh and another",
2018(2) R.C.R. (Criminal) 131, wherein it has been held that the grant of
bail is a general rule and putting persons in jail or in prison or in
correction home is an exception. Relevant paras of the said judgment is
reproduced as under:-
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"2. A fundamental postulate of criminal jurisprudence is the
presumption of innocence, meaning thereby that a person is
believed to be innocent until found guilty. However, there are
instances in our criminal law where a reverse onus has been
placed on an accused with regard to some specific offences but
that is another matter and does not detract from the fundamental
postulate in respect of other offences. Yet another important facet
of our criminal jurisprudence is that the grant of bail is the general
rule and putting a person in jail or in a prison or in a correction
home (whichever expression one may wish to use) is an exception.
Unfortunately, some of these basic principles appear to have been
lost sight of with the result that more and more persons are being
incarcerated and for longer periods. This does not do any good to
our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the
discretion of the judge considering a case but even so, the exercise
of judicial discretion has been circumscribed by a large number of
decisions rendered by this Court and by every High Court in the
country. Yet, occasionally there is a necessity to introspect whether
denying bail to an accused person is the right thing to do on the
facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be
considered is whether the accused was arrested during
investigations when that person perhaps has the best opportunity
to tamper with the evidence or influence witnesses. If the
investigating officer does not find it necessary to arrest an accused
person during investigations, a strong case should be made out for
placing that person in judicial custody after a charge sheet is filed.
Similarly, it is important to ascertain whether the accused was
participating in the investigations to the satisfaction of the
investigating officer and was not absconding or not appearing
when required by the investigating officer. Surely, if an accused is
not hiding from the investigating officer or is hiding due to some
genuine and expressed fear of being victimised, it would be a
factor that a judge would need to consider in an appropriate case.
It is also necessary for the judge to consider whether the accused
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is a first-time offender or has been accused of other offences and if
so, the nature of such offences and his or her general conduct. The
poverty or the deemed indigent status of an accused is also an
extremely important factor and even Parliament has taken notice
of it by incorporating an Explanation to section 436 of the Code of
Criminal Procedure, 1973. An equally soft approach to
incarceration has been taken by Parliament by inserting section
436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by
a judge, while dealing with an application for remanding a suspect
or an accused person to police custody or judicial custody. There
are several reasons for this including maintaining the dignity of an
accused person, howsoever poor that person might be, the
requirements of Article 21 of the Constitution and the fact that
there is enormous overcrowding in prisons, leading to social and
other problems as noticed by this Court in In Re-Inhuman
Conditions in 1382 Prisons, 2017(4) RCR (Criminal) 416: 2017(5)
Recent Apex Judgments (R.A.J.) 408 : (2017) 10 SCC 658
6. The historical background of the provision for bail has been
elaborately and lucidly explained in a recent decision delivered in
Nikesh Tara chand Shah v. Union of India, 2017 (13) SCALE 609
going back to the days of the Magna Carta. In that decision,
reference was made to Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 in which it is observed that it was held way back
in Nagendra v. King-Emperor, AIR 1924 Calcutta 476 that bail is
not to be withheld as a punishment. Reference was also made to
Emperor v. Hutchinson, AIR 1931 Allahabad 356 wherein it was
observed that grant of bail is the rule and refusal is the exception.
The provision for bail is therefore age-old and the liberal
interpretation to the provision for bail is almost a century old,
going back to colonial days.
7. However, we should not be understood to mean that bail should
be granted in every case. The grant or refusal of bail is entirely
within the discretion of the judge hearing the matter and though
that discretion is unfettered, it must be exercised judiciously and in
a humane manner and compassionately. Also, conditions for the
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grant of bail ought not to be so strict as to be incapable of
compliance, thereby making the grant of bail illusory."
Therefore, to elucidate further, this Court is conscious of the
fundamental principle of law that right to speedy trial is a part of
reasonable, fair and just procedure enshrined under Article 21 of the
Constitution of India. This constitutional right cannot be denied to the
accused as is the mandate of the Apex court in "Hussainara Khatoon
and ors (IV) v. Home Secretary, State of Bihar, Patna", (1980) 1 SCC
98. Besides this, reference can be drawn upon that pre-conviction period
of the under-trials should be as short as possible keeping in view the
nature of accusation and the severity of punishment in case of conviction
and the nature of supporting evidence, reasonable apprehension of
tampering with the witness or apprehension of threat to the complainant.
5. Decision:
In view of the aforesaid discussions made hereinabove, the
petitioner is directed to be released on regular bail on her furnishing bail
and surety bonds to the satisfaction of the trial Court/Duty Magistrate,
concerned.
However, it is made clear that anything stated hereinabove
shall not be construed as an expression of opinion on the merits of the
case.
The petition in the aforesaid terms stands allowed.
(SANDEEP MOUDGIL)
JUDGE
18.11.2024
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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