Non compliance of grounds shall attract rejection of bail application: Delhi High Court
The question posed before the Delhi HC was, whether the bail application, here concerned, had merits to be accepted by this honorable High Court. The present matter of Kashish Jain vs. The State, [BAIL APPLN.-1788/2020],was brought before Justice BrijeshSethi, who rejected the bail application stating that no grounds of the regular bail are met in the present case and further, nothing stated in this application opines about the merit of the case, which as per the Learned senior council for the petitioner, was suppose to be the main argument. The petitioner here was 26 year old, young man. On 24th November 2018, he was taken into the judicial custody along with his parents, who are the co-accused in the case for the crime of cheating. After the completion of the investigation, the investigation agency filed the charge-sheet on 23rd January, 2019. The co-accused (parents of the petitioner) was granted interim protection by the court on 13th February, 2019, but the same was rejected for the petitioner on his earlier bail application, dated 31st October, 2019.This subsequent bail application was filed by the petitioner u/s 482 of Cr.P.C, to grant regular bail to the petitioner. The council for the petitioner contended that, the there is no point in keeping the accuse under judicial custody when the investigation for the present matter is already complete and charge-sheet filed, the petitioner further contends that, even after the filing of the charge-sheet on January of 2019, no charges are yet framed due to which there had been a delay in the commencement of the trial, which adversely affected the petitioner. As a reply to the contentions forwarded by the petitioner, the Learned Additional Public Prosecutor for the State the the delay in the trial was not due to the investigation agencies fault, but it’s due to the incompliance of co-accuse in the investigation procedure &amp;due to this the supplementary charge-sheet is yet to be filed. The HC after considering all the submissions in this matter, came to a view that, the petitioner was a direct beneficiary of the cheated amount, he was involved as a co-applicant and had forged fake documents to get the loan form Cholamamdalam Ltd.. The HC agrees to the public prosecutors’ view on the cause of the delay of the commencement of the trial, where the court belived that, “There is no delay on the part of investigating agency in filing supplementary charge-sheet. Rather, it is because of the non-cooperation of the co-accused i.e. parents of the petitioner that the supplementary charge-sheet is not being filed.”
IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment reserved on: 01.09.2020 Judgment pronounced on: 03.11.2020 BAIL APPLN. 1788 2020 KASHISH JAIN Through: Mr. Ramesh Gupta Learned Sr. Advocate along with Mr. Ajay P.Tushir Advocate. THE STATE Respondent Through: Mr. G.M.Farooqui Learned APP for the State. SI Pradeep PS Model Town. Mr. Sumit Choudhary Learned counsel for the HON BLE MR. JUSTICE BRIJESH SETHI BRIJESH SETHI J. The hearing has been conducted through video conference. This application has been filed by the petitioner under Section 439 Cr.P.C. read with Section 482 Cr.P.C. for grant of regular bail in FIR bearing no. 341 2018 under section 420 467 468 471 34 120 IPC registered at P.S. Model Town New Delhi. It is submitted by learned senior counsel that petitioner is innocent and has been falsely implicated in the present case. Petitioner is a young boy of 26 years and is in judicial custody since Bail Appl. No. 1788 2020 24th November 2018. He is suffering from various ailments and appropriate treatment is not being provided to him despite the fact that Doctor has specifically mentioned that petitioner should be kept in 24x7 supervision and jail authorities should ensure that no active suicidal means to be kept near him. The poor health condition of the petitioner make him vulnerable to Covid 19. Petitioner’s father is a 53 years old diabetic patient with multiple coronary blockages and he has already undergone two stents implants and angioplasty which also makes him vulnerable to novel corona virus. Investigation in the present case has been completed and Charge sheet has also been filed by the investigating agency on 23rd January 2019 but since then no trial has been commenced as the charges are yet to be framed. Petitioner has not been named in the present FIR. Co accused Naresh Jain and Simi Jain have already been granted interim protection from their arrest vide order dated 13th February 2019. Petitioner has also been granted bail by learned trial court vide order dated 21st January 2019 in connection with another FIR bearing No. 277 2018 registered with P.S. Sadar Bazar in respect of the same loan transaction with Cholamandalalm Bank in which petitioner’s name was allegedly involved as co borrower. It is submitted that learned Additional Sessions Judge has failed to consider that no specific role of the petitioner has been mentioned in the charge sheet except that he was allegedly partner of the firm M S NH International whose partnership was executed on the address in question before family of the petitioner shifted in the said floor. There is no legally admissible evidence on record Bail Appl. No. 1788 2020 which can prima facie suggest that the petitioner has committed any offence punishable under section 420 467 IPC. Learned counsel for the appellant has therefore prayed for grant of bail. Learned senior counsel for the petitioner has however clarified that he is confining his arguments on merits and so far as interim bail on medical grounds is concerned a separate application has been filed by the Learned senior counsel for the petitioner in support of his contentions has also relied upon the following case laws: a. R. Vasudevan vs. CBI New Delhi 2010(1) JCC 642 b. Moti Ram vs. State of M.P. 4 SCC 47 Hon’ble Supreme Court c. Ashok Dhingra vs N.C.T. of Delhi 2001JCC[SC] 178 d. Ravinder Saxena vs. State of Rajasthan 2009JCC1498 e. Rajeev Choudhary vs. State 2009JCC 1498 f. H.B. Chaturvedi vs. C.B.I 2009JCC 1498 g. Sanjay Chandra vs. C.B.I. 1 see 40 h. Dr. Shivinder Mohan Singh vs. Directorate of Enforcement BAIL APPL. 1353 2020 DHC i. Dataram Singh vs. State of Uttar Pradesh and Ors. 3 j. Sheila vs. R. and Ors. SCC 22 MANU SE 0542 201S k. Sharad T. Kabra vs. Union of India 2018(4) SCC 493 l. Manish Solanki vs. The State of Rajasthan 2019(4) SCJ 340 m. Firoz Khan vs. StateMANU DE 1134 2020 n. Rajendra Prakash Agrawal vs. Union of Indiaand Ors. 2015(5)JCC 233 o. Narender Jain vs. State Bail Appln. 1992 2009 p. Tunde Gbaja vs. Central Bureau of Investigation 2007(95)DRJ429 q. Sharad Kumar vs. CBI 2011JCC3048. Bail Appl. No. 1788 2020 6. I have gone through the above case law. There is no quarrel with the proposition of law laid down therein. However these authorities are clearly distinguishable on the basis of facts and circumstances stated therein. Moreover it is settled principle of law that no straitjacket formula can be laid down in deciding a bail application. The Hon’ble Supreme Court in State of Bihar & Anr. v. Amit Kumar @ Bachcha Rai 13 SCC 751 has held as under: “11.Although there is no quarrel with respect to the legal propositions canvassed by the learned counsels it should be noted that there consideration of grant of bail to an accused. It all depends upon facts and circumstances of each case. The Government s interest in preventing crime by arrestees is both legitimate and compelling. So also is the cherished right of personal liberty envisaged under Article 21 of the Constitution. Section 439 of The Code of Criminal Procedure 1973 to uphold responsibility upon procedural fairness before a person’s liberty is abridged. Although ‘bail is the rule and jail is an exception’ is well established in our to measure jurisprudence we facts and circumstances of each case before enlarging a person on bail.”(Emphasis supplied) forces present the courts provision It is also well settled that judicial precedent cannot be followed as a statute and has to be applied with reference to the facts Bail Appl. No. 1788 2020 of the case involved in it. The ratio of any decision has to be understood in the background of the facts of that case. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in it. It has to be remembered that a decision is only an authority for what it actually decides. It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. The ratio of one case cannot be mechanically applied to another case without regard to the factual situation and circumstances of the two cases. In Padma Sundara Rao & Ors. v. State of Tamil Nadu & Ors.(2002) 3 SCC 533 the Hon’ble Supreme Court has held that the ratio of a judgment has to be read in the context of the facts of the case and even a single fact can make a difference. In para 9 of the said judgment the Hon’ble Supreme Court has held as under: “9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case said Lord Morris in British Railways Board v. flexibility one additional or different fact may make a world of difference between conclusions in two cases.” Herrington. Bail Appl. No. 1788 2020 In Bharat Petroleum Corporation Ltd v. N.R. Vairamani 2004) 8 SCC 579 the Hon’ble Supreme Court has held that a decision cannot be relied on without considering the factual situation. The Hon’ble Supreme Court has observed as under “9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of courts are neither to be read as Euclid s theorems nor as provisions of a statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of courts are not to be construed as statutes. To interpret words phrases and provisions of a statute it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes judgments. They interpret words of statutes their words are not to be interpreted as In London Graving Dock Co. Ltd. v. Horton2 All ER 1(AC at p. 761) Lord Mac Dermott observed:they do not “The matter cannot of course be settled merely by treating the ipsissima verba of Willes J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to Bail Appl. No. 1788 2020 the language actually used by that most distinguished judge…” 10.In Home Office v. Dorset Yacht Co.2 All ER 294 : 1970 AC 1004 :2 WLR 1140(All ER p. 297g h) Lord Reid said “Lord Atkin s speech … is not to be treated as if it were a statutory definition. It will require qualification in new circumstances”. in Shepherd Homes Ltd. v. Megarry J. Sandham[(1971) 1 WLR 1062 :2 All ER 1267] observed: “One must not of course construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament.” And in Herrington v. British Railways Board2 WLR 537: 1 All ER 749Lord Morris said:“There is always peril in treating the words of a speech or a judgment as though they were words in a legislative enactment and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.” 11.Circumstantial flexibility one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. 12. The following words of Lord Denning in the matter of applying precedents have become locus classicus: “Each case depends on its own facts and a Bail Appl. No. 1788 2020 close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect in deciding such cases one should avoid the to decide cases by matching the colour of one case against the colour of another. To decide therefore on which side of the line a case falls the broad resemblance to another case is not at all decisive. Precedent should be followed only so far as it marks the path of justice but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.” 10. Thus the present bail application has to be decided on the basis of its own facts. Learned Additional Public Prosecutor for the state has opposed the application on the ground that offence committed by the petitioner is serious in nature. He is the beneficiary of cheated amount of approximately Rs. 2.20 Crores. It is further submitted that though investigation qua petitioner is complete and charge sheet has been filed against him however supplementary charge sheet is yet to be filed qua parents of the petitioner and bank employees. Since parents of the petitioner have been granted protection they are not co operating investigation. It is further submitted that petitioner and his parents have no permanent address in Delhi and therefore there are chances Bail Appl. No. 1788 2020 of his absconding. He has therefore prayed for dismissal of the present application. 11. Mr. Sumit Choudhary Learned counsel for the complainant also filed reply to the bail application and submitted that there is no change of circumstance since dismissal of earlier bail application of the petitioner by this court vide its order dated 31st October 2019. It is submitted that the delay in trial has been on account of non appearance of counsel for the petitioner and the petitioner has taken a deliberate stand to procrastinate the trial court. It is further denied that trial has been delayed on the ground that supplementary charge sheet is yet to be filed. Perusal of the order dated 2nd November 2019 of trial court reveals that the investigating agency has categorically stated that supplementary charge sheet is only to be filed qua co accused persons who were granted interim protection by this Court. However ever since interim bail has been granted the co accuseds have adopted delaying tactics by taking regular adjournment in their respective bail petition. It is further submitted that petitioner is a habitual offender who is also accused in similar case bearing FIR no. 277 2018 PS Sadar Bazaar. Further co accuseds have failed to deposited Rs. 40 00 000 as per direction of this Hon’ble Court in above noted FIR which further reflects that neither the petitioner nor his parents have any intention to comply with the directions of this Court or return the cheated amount. Bail Appl. No. 1788 2020 13. It is further submitted that petitioner is an economic offender who has cheated the complainant in a well deliberated conspiracy and if granted bail by this Hon’ble Court he carries a significant flight risk as he does not have a permanent abode and therefore in view of the abovementioned submissions learned counsel for the complainant has requested for dismissal of the present bail application. 14. Learned counsel for the petitioner has filed rejoinder to the reply of the learned counsel for the complainant and denied all the allegations. It is submitted that reply in question has been filed only with a purpose to delay the disposal of the present application. Non framing of charge for the last almost 2 years after filing of the charge sheet itself indicates that there is likelihood of delay in disposal of the case and that petitioner’s fundamental right for expeditious justice under Article 21 of the Constitution of India is thus violated. It is submitted that petitioner along with his counsel was appearing diligently in almost all the hearings and matter in trial court was adjourned almost for one year on account of non filing of supplementary charge sheet. Interim bail applications of co accuseds have no bearing on the trial qua the present petitioner as the charge sheet has already been filed before the trial court and specimen thumb impression and handwriting of the petitioner has already been obtained and sent to FSL. I have considered the rival submissions. Perusal of record reveals that petitioner was arrested on 24th November 2018 and after completion of investigation charge sheet has been filed by the Bail Appl. No. 1788 2020 investigating agency on 23rd January 2019. However supplementary charge sheet is yet to be filed qua the co accuseds Naresh Jain and Simi Jain. According to the status report of SHO PS Model Town dated 24th August 2020 the co accuseds i.e. Naresh Jain and Simi Jain who have been granted interim protection by this court vide order dated 13th February 2019 are not co operating in the investigation. They have not given their specimen signature and their custodial interrogation is required for the said purpose. In the absence of the same the prosecution cannot file supplementary charge sheet qua co accuseds. Thus it is clear that delay in filing the supplementary charge sheet and framing of charges against the petitioner are for the reason that the co accuseds have been granted interim protection by this court and they are not co operating with the investigating agency. Thus there is no deliberate delay on the part of investigating agency in filing the supplementary charge sheet. The earlier bail application of petitioner was dismissed by this court vide a detailed order dated 31st October 2019 in which it was observed that the proprietor of M s. Shreya International namely Simmi Jain had transferred Rs. 95 lacs to Kashish International whose owner is petitioner Kashish jain and Rs.55 lacs to NH international whose partners are Naresh jain and Kashish Jain through RTGS on 11th May 2015. Further the alleged original sale deed of property Z 10 2nd floor Model Town Delhi shows that on the front page of sale deed the photographs of complainant Sanjay Garg and accused Simmi Jain were affixed but the seal of sub registrar was incomplete on the photo of Sanjay Garg. Accused Bail Appl. No. 1788 2020 Simmi Jain had transferred Rs.77 lacs in the account of Kashish International and saving account of Kashish Jain. The applicant is thus the beneficiary of cheated amount of Rs.2.20 Crore approx. and is directly involved in this case which is clear from his presence at the time of valuation of alleged property No.Z 10 2nd floor Model Town Delhi which was done at the instruction of Cholamandalam Ltd. In view of the above facts appearing on record it is clear that petitioner is beneficiary of the cheated amount of Rs. 2.2 Crores. The amount has flowed to him being one of the beneficiaries of the company. Petitioner is co applicant in the Loan which has been taken from Cholamandalam Ltd. and he has played an active role throughout the loan process by using forged documents. The investigation qua co accuseds is under progress. It has also come on record that petitioner is also involved in another case bearing FIR No. 277 18 u s. 419 420 467 468 471 120 B IPC PS Sadar Bazar. There is no delay on the part of investigating agency in filing supplementary charge sheet. Rather it is because of the non co operation of the co accuseds i.e. parents of the petitioner that the supplementary charge sheet is not being filed. In view of the above discussion and also keeping in mind the fact that petitioner is also involved in another case bearing FIR No. 277 18 under Section 419 420 467 468 471 120 B IPC PS Sadar Bazar New Delhi no grounds for regular bail are made out at this Bail Appl. No. 1788 2020 stage. The bail application is therefore dismissed and stands disposed of accordingly. 18. However nothing stated herein above is expression of opinion on the merits of the case. 19. A copy of this order be sent to the concerned Jail Superintendent via electronic mode. 20. The order be uploaded on the website of this court forthwith. BRIJESH SETHI J NOVEMBER 03 2020 Bail Appl. No. 1788 2020 