Sanjeev Sirohi
Published on: 15 January 2023 at 14:30 IST
While very rightly sticking to the most fundamental canon of “Bail is the rule and jail is the exception”, the Delhi High Court in a latest, laudable, landmark and learned judgment titled Kapil Taneja Vs State (Govt NCT of Delhi) in Bail Appln. 3577/2022 cited in 2023 SCC OnLine Del 81 that was reserved on January 6 and then finally pronounced on January 11, 2023 has laid down in no uncertain terms that, “We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.” We thus see that the appellants get bail subject to stringent conditions. The Court made it clear on the bail it granted that, “Nothing mentioned hereinabove is an opinion on the merits of the case.”
At the very outset, this brief, brilliant, balanced and bold judgment authored by the Single Judge Bench comprising of Hon’ble Mr Justice Amit Sharma of Delhi High Court sets the ball in motion by first and foremost putting forth in para 1 that, “The present application under Section 439 of the Criminal Procedure Code, 1973 (hereinafter referred to as ‘CrPC’) has been moved on behalf of Sh. Kapil Taneja (hereinafter referred to as the ‘applicant’) seeking regular bail in case FIR No. 217/2022, under Sections 419/420/120B/34/389 of the Penal Code, 1860 read with Sections 66C and 66D of the Information Technology Act, 2000, registered at PS Crime Branch.”
As we see, the Bench states in para 12 that, “The case of the prosecution, in a nutshell, is that the applicant was found at the premises of an alleged call centre being operated from D-1/91, 1st Floor, Phase-I, Okhla, Delhi, from where the present applicant alongwith other tele-callers were allegedly involved in a process of cheating overseas victim from USA.”
To put things in perspective, the Bench envisages in para 13 that, “It is further stated in the status report that on questioning, the present applicant disclosed that he was a partner in the aforesaid call centre and was leading a team of approximately 20 tele-callers. It is also a matter of record that the chargesheet in the present case has been filed qua 34 persons and the applicant is the only one who is in judicial custody,”.
“As per the case of the prosecution, the investigation is continuing with regard to the identification of the alleged victims who were cheated by the applicant and his accomplices, as pointed out hereinbefore,”.
“In response to a request made by the investigating agency vide communication dated 21.09.2022, the Federal Bureau of Investigation (hereinafter referred to as ‘FBI’) vide a communication dated 11.1. 2022) informed the former that they are under process of identifying the said alleged victims and would share the details with the Investigating Officer of the present case, once they are able to complete their inquiry.”
As it turned out, the Bench then points out in para 14 that, “It is a matter of record, as per the chargesheet, that the alleged victims are based in USA. Admittedly, there is no statement in the chargesheet on behalf of any witness who claims to be defrauded/cheated by the applicant or any other accused person,”.
“The investigation in respect of identifying the said alleged victims is underway in USA. The equipment, mobile phones and other devices being used in the call centre stand seized by the investigating agency. The evidence, as mentioned in the chargesheet at Para 24, against the present accused is being reproduced as under:
“24. EVIDENCE AGAINST ACCUSED KAPIL TANEJA
a) He was present at the alleged call center at the time of raid.
b) 40 Laptops and 20 mobile phones that were being used to cheat the US Nationals were recovered from the alleged call center.
c) Three mobile phones were recovered from him in which chats were recovered which established his involvement in the cheating.
d) Some documents having, details of cheated US Nationals were also recovered from him.
e) Recovery of script used to cheat the victims.””
While according paramount importance to bail over jail and citing the most relevant case laws, the Bench then so very aptly mentions in para 15 that, “The Hon’ble Supreme Court, in Sanjay Chandra v. Central Bureau of Investigation, (2012) 1 SCC 40 has held as under:
“21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.
Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon.
The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test.
In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
46. We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardise the economy of the country.
At the same time, we cannot lose sight of the fact that the investigating agency has already completed investigation and the charge-sheet is already filed before the Special Judge, CBI, New Delhi.
Therefore, their presence in the custody may not be necessary for further investigation. We are of the view that the appellants are entitled to the grant of bail pending trial on stringent conditions in order to ally the apprehension expressed by CBI.”(emphasis supplied).”
Most significantly, it has to be borne in mind that while dwelling on the reasons for granting of bail, the Bench then expounds in para 16 stating that, “The present applicant has been in judicial custody since 26.09.2022, as mentioned hereinabove. Recoveries have been effected. The chargesheet has been filed,”.
“The possibility of tampering with the evidence, as also of influencing the witnesses cannot be presumed at this stage, owing to the fact that the evidence, as pointed out in the chargesheet is already in possession of the investigating agency. Further, admittedly, yet to be identified alleged victims are residents of USA and therefore, cannot possibly be influenced by the present applicant. There is no apprehension expressed that applicant is a flight risk.”
Needless to say, the Bench then again reiterates in para 17 that, “Further investigation, as pointed out by the learned APP for the State, is continuing but the same cannot be a ground for applicant’s continued incarceration,”.
“Moreover, further investigation in the present case, pertains to an inquiry being conducted by the FBI in USA and no useful purpose will be served by keeping the present applicant in judicial custody.”
As a corollary, the Bench then propounds in para 18 that, “In view of the facts and circumstances of the present case, the application is allowed.”
What’s more, the Bench then directs and stipulates in para 19 that, “The applicant is admitted to bail upon his furnishing a personal bond in the sum of Rs. 1,00,000/- alongwith two sureties of like amount to the satisfaction of the learned trial Court/Duty Magistrate, further subject to the following conditions:
i. The memo of parties shows that the applicant is residing at F-8, Vikas Puri, Delhi. In case of any change of address, the applicant is directed to inform the same to the learned Trial Court and the Investigating Officer.
ii. The applicant shall not leave India without the prior permission of the learned Trial Court.
iii. The applicant is directed to give all his mobile numbers to the Investigating Officer and keep them operational at all times.
iv. The applicant shall not, directly or indirectly, tamper with evidence or try to influence the witnesses in any manner.
v. The applicant shall join the investigation, as and when required by the Investigating Officer.
vi. In case it is established that the applicant tried to tamper with the evidence, the bail granted to the applicant shall stand cancelled forthwith.”
For clarity, the Bench states in para 20 that, “Needless to state, nothing mentioned hereinabove is an opinion on the merits of the case.”
On the whole, we thus see that the Delhi High Court has very rightly granted bail for reasons as discussed aforesaid as is quite discernible also.
Moreover, it must be also acknowledged gracefully that the Court very rightly concedes that their presence in the custody may not be necessary for further investigation and so bail had to be granted. Hence bail was accordingly very rightly granted also to the applicant named Kapil Taneja so very commendably by the Delhi High Court. There can be just no denying it!
Sanjeev Sirohi, Advocate