Davinder Kumar v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Station Sections 0089 31.07.2024 Rahon, Dis.. SBS 406, 420, 120-B IPC Nagar (Punjab)

¶1The pe!!oner apprehending arrest in the FIR cap!oned above has come up before this Court under Sec!on 482 of Bhara!ya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking an!cipatory bail.

¶2In paragraph 18 of the bail pe!!on, the accused declares that he has no criminal antecedents.

¶3The facts and allega!ons are being taken from the status report filed by the State, which reads as follows: "3. That it is further submi:ed that the brief facts of the present case are that the present FIR No.89 dated 31.07.2024, registered under Sec%on 406, 420, 120-B of IPC, was registered at Police Sta%on Rahon, District SBS Nagar on the complaint No.833-Peshi dated 27.05.2024, moved by complainant Surjit Ram, son of Raj Kumar, resident of village Daryapur, PS Rahon, alleging therein that complainant is doing the agriculture work and the son of complainant namely, Rohit Sondhi, aged about 22 years, who is doing the work of truck repair, is aspirant to go abroad. In this order/judgment. 1 regard, complainant had a talk with accused-Charanjit Kaur wife of Harpal Singh, Bheete daughter of Harpal Singh, Manpreet daughter of Harpal Singh and Sarabjit Kaur wife of Jaswinder Kumar alias Jassi, pursuant to which Sarabjit Kaur disclosed that her husband Jaswinder Kumar alias Jassi and his partner namely Amandeep Singh Bajwa are working as travel agents and they can send Rohit Sondhi to England. The aforesaid accused got the complainant and his son introduced with accused-Jaswinder Kumar alias Jassi and Amandeep Singh Bajwa in their office at Jalandhar, who assured to send Rohit Sondhi (son of complainant) to England, within three months against payment of Rs. 15,00,000/-. The complainant further alleged that on 17.05.2022, Rohit Sondhi, transferred Rs.1 lakh from his bank account maintained in Punjab & Sind Bank, in the account of accused Jaswinder Kumar alias Jassi and on

20.05.2022 another amount of Rs. 34,500/- in the account of accused Amandeep Singh Bajwa. Therea>er, on 10.06.2022, as per demand raised by accused Jaswinder Kumar alias Jassi, an amount of Rs.3,30,000/-, was transferred by Rohit Sondhi, in the account of accused Amandeep Singh Bajwa and another amount of Rs.20,000/- on 13.06.2022. Even therea>er, as per demands raised by the accused, a total sum of Rs.11,62,000/- was deposited in the accounts of all the accused. Further cash amount of Rs. 1 lakh was paid to accused Amandeep Singh Bajwa, Rs. 1 lakh to accused Jaswinder Kumar alias Jassi, Rs.1 lakh to accused Sarabjit Kaur and Rs.38,000/- was paid to present pe%%oner-Davinder Kumar. The complainant further alleged that in this manner, the accused persons received the total sum of Rs. 15 lakh, on different dates, with the promise to send Rohit Sondhi to England. A>er three months, when complainant and his son, met the accused at their office at Jalandhar, accused Jaswinder Kumar and Amandeep Singh showed their helplessness to send Rohit Sondhi to England, on the pretext of strictness in issuance of visa by the U.K and assured to send Rohit Sondhi to New Zealand, with three years work permit, failing which to return the money. However, the accused failed to fulfill their promise of sending Rohit Sondhi to New Zealand and rather sent him to Thailand, from where Rohit Sondhi came back on 14.03.2023, as accused failed to send Rohit Sondhi to New Zealand from Thailand. Accused have now refused to return the amount of Rs.15 lakh and have commi:ed chea%ng with the complainant. The complainant further requested to take legal ac%on against the accused JYOTI according to law." order/judgment. 2

¶4The pe!!oner's counsel prays for bail by imposing any stringent condi!ons and contends that further pre-trial incarcera!on would cause an irreversible injus!ce to the pe!!oner and his family.

¶5The State's counsel opposes bail and refers to the status report.

¶6It would be appropriate to refer to the following por!ons of the status report, which read as follows: "8. That it is further submi:ed that there are specific allega%ons against the pe%%oner to the effect that the complainant paid a sum of Rs.38,000/- to present pe%%oner out of total payment of Rs.15,00,000/-. It is further submi:ed that the pe%%oner in connivance with his other co-accused cheated the complainant to the tune of Rs.15,00,000/- on the pretext of sending his son abroad but they neither sent the son of the complainant to abroad nor returned his amount. Moreover, inves%ga%on of the present case is s%ll going on and accused including the present pe%%oner are yet to be arrested. The custodial interroga%on of the pe%%oner is very much required in this case for proper inves%ga%on of the case and to recover the amount paid by the complainant and if the pe%%oner is released on pre-arrest bail then he will hamper the pending inves%ga%on and will temper the prosecu%on evidence, therefore the pe%%oner is not en%tled for any kind of relief from this Hon'ble Court."

¶7Pre-trial incarcera!on should not be a replica of post-convic!on sentencing. The evidence might be prima facie sufficient to launch prosecu!on or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of an!cipatory bail. An analysis of the above does not jus!fy custodial interroga!on or pre-trial incarcera!on.

¶8Given the above, the penal provisions invoked coupled with the primafacie analysis of the nature of allega!ons and the other factors peculiar to this case, there would be no jus!fiability for custodial interroga!on or the pre-trial incarcera!on at this stage. Without commen!ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men!oned above, the pe!!oner makes a case for bail. This order shall come into force from the !me it is uploaded on this Court's official webpage.

¶9Given above, provided the pe!!oner is not required in any other case, the pe!!oner shall be released on an!cipatory bail in the FIR cap!oned above subject to order/judgment. 3 furnishing bonds to the sa!sfac!on of the Arres!ng Officer, and if the ma.er is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accep!ng the surety, the concerned Officer/Court must be sa!sfied that if the accused fails to appear, such surety can produce the accused.

¶10While furnishing a personal bond, the pe!!oner shall men!on the following personal iden!fica!on details:

¶1AADHAR number

¶2Passport number (If available) and when the a.es!ng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶11This order is subject to the pe!!oner's complying with the following terms.

¶12The pe%%oner is directed to join the inves%ga%on within seven days of uploading this order on the official webpage of the High Court of Punjab and Haryana and as and when called by the Inves%gator. The pe!!oner shall be in deemed custody for Sec!on 27 of the Indian Evidence Act, 1872/ Sec!on 23 of BSA, 2023. The pe!!oner shall join the inves!ga!on as and when called by the Inves!ga!ng Officer or any Superior Officer and shall cooperate with the inves!ga!on at all further stages as required. In the event of failure to do so, the prosecu!on will be open to seeking cancella!on of the bail. During the inves!ga!on, the pe!!oner shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

¶13The necessary steps, such as interroga!ng the pe!!oner, must be taken to recover the money. If the inves!gator fails to recover the money, the State shall be at liberty to file an applica!on for cancella!on of this bail.

¶14The pe!!oner shall abide by all statutory bond condi!ons and appear before the concerned Court(s) on all dates. The pe!!oner shall not tamper with the evidence, influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any witnesses, Police officials, or any other person acquainted with the facts and circumstances of the case or dissuade them from disclosing such facts to the Police or the Court.

¶15In case the Inves!gator/Officer-In-Charge of the concerned Police Sta!on arraigns another sec!on of any penal offense in this FIR, and if the new sec!on prescribes a maximum sentence that is not greater than the sec!ons men!oned above, then this bail order shall be deemed to have also been passed for the newly addedJYOTI order/judgment. 4 sec!on(s). However, suppose the newly inserted sec!ons prescribe a sentence exceeding the maximum sentence prescribed in the sec!ons men!oned above; then, in that case, the Inves!gator/Officer-In-Charge shall give the pe!!oner no!ce of a minimum of seven days, providing an opportunity to avail the remedies available in law.

¶16This bail is condi!onal, and the founda!onal condi!on is that if the pe!!oner indulges in any non-bailable offense, the State may file an applica!on for cancella!on of this bail before the Sessions Court, which shall be at liberty to cancel this bail.

¶17Any observa!on made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶18A cer!fied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pe!!oner can download this order along with case status from the official web page of this Court and a.est it to be a true copy. If the a.es!ng officer wants to verify its authen!city, such an officer can also verify its authen!city and may download and use the downloaded copy for a.es!ng bonds.

¶19Petition allowed in terms men!oned above. All pending applica!ons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

28.11.2024 Jyoti-II order/judgment. 5

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 12.11.2024 Pronounced on: 28.11.2024 Davinder Kumar ...Pe!!oner Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Kapil Khanna, Advocate, for the pe!!oner. Mr. Akshay Kumar, AAG, Punjab. Ms. Sheena Khanna, Advocate, for the complainant. ****