Court No. - 64
Case :- CRIMINAL MISC ANTICIPATORY BAIL APPLICATION U/S 438 CR.P.C. No. - 15283 of 2021 Applicant :- Harpreet Singh Opposite Party :- Central Bureau Of Investigation And Another Counsel for Applicant :- Krishnam Pandey,Prabha Shanker Mishra,Shikher Trivedi Counsel for Opposite Party :- Sanjay Kumar Yadav
Hon'ble Ajit Singh,J.
Heard Sri Shikher Trivedi, learned counsel for the applicant, Sri Gyan Prakash, learned Senior Advocate assisted by Sri Sanjay Kumar Yadav, learned counsel appearing on behalf of C.B.I.
The instant anticipatory bail application has been filed with a prayer to grant an anticipatory bail to the applicant, Harpreet Singh, in RC No. 2192017E0017, under Sections 120B, 420, 467, 468 and 471 I.P.C., P.S.
C.B.I/E.O-I, New Delhi, district-Ghaziabad.
Prior notice of this bail application was served opposite parties and as per Chapter XVIII, Rule 18 of the Allahabad High Court Rules and as per direction dated 20.11.2020 of this Court in Criminal Misc. Anticipatory Bail Application U/S 438 Cr.P.C. No. 8072 of 2020, Govind Mishra @ Chhotu Versus State of U.P., hence, this anticipatory bail application is being heard. Grant of further time to the learned A.G.A as per Section 438 (3) Cr.P.C. (U.P. Amendment) is not required.
The F.I.R. has been lodged by the Chief Manager, Punjab National Bank, Vasundhara, Ghaziabad against the M/s. Shri Balaji Hi-Tech Constructions Pvt. Ltd, Sachin Dutta, Director, M/s Shri Balaji Hi-Tech Constructions Pvt. Lt., Sachin Dutta, director, M/s Shri Balaji Hi-Tech Constructions Pvt., Ltd, Smt. Suruchi Dutta, unknown officials of Punjab National Bank and other unknown persons. It was alleged in the F.I.R. that M/s. Balaji Hi-Tech Constructions Pvt. Ltd. constructed multi - storey residential flats under the name of Balaji Foster Heights in Ghaziabad. The said project was approved by Punjab National Bank, Ghaziabad for sanction of housing loans. It was alleged that the accused Sachin Dutta, Director of M/s. Balaji Hi-Tech Constructions Pvt. Ltd. in criminal conspiracy / connivance with accused allottees / borrowers cheated the said Bank by fraudulently obtaining housing loan in the name of allottees / borrowers on the basis of forged and fabricated documents and thereby caused loss to the complainant Bank. As per allegations, applicant swindled a huge amount of money in connivance with other accused. He issued multiple allotment letters for the same single flat to different individuals and secured housing loans in the name of all such allottees.
Learned counsel for the applicant submits that the applicant is the bonafide purchaser of plot and the present accused has agreed to purchase plot from Shri Balaji Hi-Tech Constructions Pvt., Ltd. The present applicant had made an agreement to purchase a flat from Balaji Constructions and a plan map was sanctioned by the Gaziabad Development Authority (GDA) and the applicant had applied for loan from Punjab National Bank and the bank transferred the amount directly to the account of Sri Balaji Hi-Tech Constructions Pvt. Ltd. and it has been alleged by the bank that the present accused has not paid nay instalment of loan. Further submission is that the parties have entered into a tri-partite agreement, whereby it was stipulated and agreed upon between the parties to the said agreement that the sanctioned loan amount was to be directly credited in the account of builder on behalf of borrowers and the builder has to pay the instalment to the bank. The builder has paid the instalment or not, it is not in the knowledge of the accused. He also submits that the applicant has not been given possession by the Balaji Constructions, then he stopped the instalments and the account of allottee has been classified as NPA and notice under Section 13(2) of SARFAESI Act has been served upon the allottees and the bank has initiated proceedings against the present accused, other and the builder also. He also submits that the present accused had co-operated during investigation. Learned counsel for the applicant assured that he will co-operate during trial also. A chargesheet has been filed and the accused joined investigation but was not arrested and then there was no need to arrest the applicant as the investigation has already been over and the present accused is not in a position to tamper with the prosecution evidence. There is no evidence on record, which shows that any amount was syphoned or embezzled by the present applicant and if the applicant is being arrested, it will cause harm to his reputation and it will also humiliate the applicant. There is also no evidence on record that any dishonesty was made by the present accused and the proceedings have been initiated against the present accused without any legal basis, and non-bailable warrant were issued against the applicant in a routine manner. He also submits that the matter was investigated properly for several years and the investigating agency had not arrested the present accused during investigation and has submitted chargesheet against the applicant and when the applicant was not arrested during investigation and he has not tempered with the evidence, then what is the logic now to issue non-bailable warrants against him and to send him to jail at the old age of live. He lastly submits that the applicant has no criminal history to his credit. The applicant has definite apprehension that he may be arrested by the police any time.
The learned counsel has also place reliance on the order dated 28.7.2021 passed by the The Hon'ble Apex Court in Special Leave to Appeal (Criminal) No. 5191 of 2021 Satendra Kumar Antil vs. Central Bureau of Investigation, in which the Hon'ble Apex Court has observed that prima facie, we cannot appreciate why in such a scenario is there a requirement for the petitioner being sent to custody. Be that as it may, it will be appropriate to lay down some principles in this behalf.
Sri Gyan Prakash, learned Senior Advocate has opposed the prayer for anticipatory bail of the applicant and submitted that the applicant was involved in hatching a conspiracy with the builder and they have taken loan from the bank after producing false and fabricated documents and the public money has been syphoned off. He has further submitted that in view of the seriousness of the allegations made against the applicant, he is not entitled to grant of anticipatory bail. The apprehension of the applicant is not founded on any material on record. Only on the basis of imaginary fear, anticipatory bail cannot be granted.
After considering the rival submissions, this Court finds that there is a case registered against the applicant. It cannot be definitely said when the police may apprehend him. After the lodging of F.I.R, the arrest can be made by the police at will. There is no definite period fixed for the police to arrest an accused against whom an F.I.R has been lodged. The courts have repeatedly held that arrest should be the last option for the police and it should be restricted to those exceptional cases where arresting the accused is imperative or his custodial interrogation is required. Irrational and indiscriminate arrests are gross violation of human rights. In the case ofJoginder Kumar v. State of Uttar Pradesh AIR 1994 SC 1349,the Apex Court has referred to the third report of National Police Commission wherein it is mentioned that arrests by the police in India is one of the chief source of corruption in the police. The report suggested that, by and large, nearly 60 percent of the arrests were either unnecessary or unjustified and that such unjustified police action accounted for 43.2 percent of expenditure of the jails. Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative. According to the peculiar facts and circumstances of the case, the arrest of an accused should be made.
Hence without expressing any opinion on the merits of the case and considering the nature of accusations and antecedents of applicant, she is directed to be enlarged on anticipatory bail as per the Constitution Bench judgment of the Apex Court in the case of Sushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98.The future contingencies regarding anticipatory bail being granted to applicant shall also be taken care of as per the aforesaid judgment of the Apex Court.
List on 29.9.2021 before appropriate Bench.
In the event of arrest, the applicant shall be released on anticipatory bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the trial court/ Investigating Officer concerned with the following conditions:-
1. The applicant shall, at the time of execution of the bond, furnish his address and mobile number and shall not change the residence till the conclusion of investigation/ trial without informing the Investigating Officer of the police/ the Court concerned of change of address and the reasons for the same before changing the same.
2. The applicant shall not leave the country during the currency of trial/ investigation by police without prior permission from the concerned trial Court.
3. The applicant shall not obstruct or hamper the police investigation and not play mischeif with the evidence collected or yet to be collected by the Investigating Officer of the police;
4. The applicant shall surrender his passport, if any, to the concerned Court/ Investigating Officer forthwith. His passport will remain in custody of the concerned Court/ Investigating Officer till the investigation is completed. In case he has no passport, he will file his affidavit before the Court/ Investigating Officer concerned in this regard.
5. That the applicant shall 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 from disclosing such facts to the Court or to any police officer;
6. The applicant shall maintain law and order.
7. The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law to ensure presence of the applicant.
8. In case, the applicant misuses the liberty of bail, the Court concerned may take appropriate action in accordance with law and judgment of Apex Court in the case ofSushila Aggarwal vs. State (NCT of Delhi)- 2020 SCC Online SC 98and the Government Advocate/informant/complainant can file bail cancellation application.
9. The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court, default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 12.8.2021 Faridul