TaxTMI 
TaxTMI 
2018 (6) TMI 1709
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....omplaint dated 6th September, 2017, by a 90 year-old man, Basu Dev Aggarwal (hereinafter referred to as "the complainant"). In the said complaint, the complainant alleged that the present applicants, amongst others, had been repeatedly extorting money from him, over a period of twelve to thirteen years, threatening to publicize morphed photographs, depicting the complainant in a compromising position with a particular lady named Pooja with whom, the complainant would allege, he had no relationship whatsoever. In his complaint, the complainant stated that Harish Tiwari (one of the applicants before me) introduced himself, to the complainant, as an advocate, and stated that a certain lady had objectionable documents, which could compromise the complainant, whereupon, in order to buy peace, the complainant paid "a small amount" to Harish Tiwari. Two to three years later, it was alleged that Harish Tiwari again met the complainant, stating, this time, that Subhash Sharma (another applicant before me) had told him something against the complainant, which persuaded the complainant to, once again, pay him a small amount " to avoid nonsense". The complainant further alleged that Harish Tiw....
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.... Section 164 of the Code of Criminal procedure, 1973, (hereinafter referred to as "the Cr.P.C") denied knowing the complainant, though she said that she was aware that certain people were trying to link her with him. 7. A month after the aforementioned complaint, on 7th October, 2017, the complainant filed a second complaint in the Police Station, substantially improving on the earlier complaint filed by him. The complainant justified filing the second complaint on the ground that he suffered from amnesia and was not, therefore, in a position to remember all the facts when he filed his first complaint. In the second complaint, the complainant alleged that the amount extorted from him, by the aforementioned blackmailers/extortionists, over the period of twelve to thirteen years, was in the region of Rs. 10 crores of which Rs. 7 crores were extorted in the initial 3-4 years. He also named, in the second complaint, various other alleged blackmailers/extortionists involved in the racket, namely Harish @ Baba Vashishth, his brother Vishal Vashishth, Naresh Chaubey, Yogesh Yadav, P.C. Sharma, Akhilesh Sharma and Anju Tiwari. It was also alleged that, possibly, J. D. Gupta was also invol....
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....losed, in his statement, that J. D. Gupta had provided photographs and videos of the complainant, which were morphed by them, with the photograph of a girl, reflecting the complainant in a compromising position with her, so as to extort money from the complainant. It was further stated, by Harish, in his disclosure statement that, as per the conspiracy between them, all contact, with the complainant, was to be by Harish Tiwari, who would instill sufficient fear in the complainant, as to compel him to cough up the money demanded by them. He named others, allegedly involved in the racket, as well. 11. The charge-sheet alleged that a similar statement had been given by Ashok Sagar. 12. On 23rd October, 2017, Harish Tiwari and Ashok Sagar were arrested and produced before the learned MM, who remanded them to police custody. During interrogation in police custody, Harish Tiwari produced a Vakalatnama with the consent of the complainant, two mobile phones used by him in committing the crime, copy of a letter for publication and morphed photographs involving the complainant, all of which were recovered and seized. 13. On 1st November, 2017, Harish Tiwari and Ashok Sagar were remanded t....
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....s already been noted hereinabove, Harish Tiwari and Ashok Sagar have been in custody since 23rd October, 2017. 20. In the aforementioned chargesheet, Subhash Sharma was, however, reflected as an absconder, against whom, first, non-bailable warrants were issued and, on the attempt at executing the said warrants against him failing, process, under Section 82 of the Cr.P.C., for declaring him as a proclaimed offender, was initiated. It appears, however, that the said proceedings were stayed, by the learned Trial Court, as Subhash Sharma had applied for bail, and the application was to come up for hearing on 14th December, 2017. Consequent to dismissal, of the bail application of Subhash Sharma, by the learned Trial Court, he surrendered, in Court, on 15th January, 2018. While doing so, he requested for Test Identification Parade (TIP), but the Investigating Officer (I/O) opposed the request. On 17th January, 2018, Subhash Sharma was remanded to JC and, thereafter, on 12th March, 2018, supplementary charge-sheet, dealing exclusively with him, was submitted. The supplementary charge-sheet alleged that Subhash Sharma had, during his police remand, admitted the preparation of the morphed....
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....his fact, it was inconceivable that morphed the photographs, showing the complainant in proximity with Pooja, could have been generated. He further contends that it was, ex facie, unbelievable that the complainant would pay huge amounts, over a period of 12 to 13 years, to avoid disclosure of morphed photographs, showing him in proximity with a lady whom he did not know. Mr. Rai further draws my attention to the fact that, of the provisions invoked against his client, the offence under Section 411 of the IPC was bailable, and that, while the offences under Section 384 and 389 of the IPC were non-bailable, the maximum punishment, under each of the said provisions, was only 3 years‟ imprisonment. Given the fact that his client had clean antecedents, and was the sole bread-winner for his family, and has remained in custody since 23rd October, 2017, Mr. Rai would submit that there was no justification, in law, for continuing the incarceration of his client, during the process of trial. 23. Harish Tiwari was represented, before me, by Mr. Jayant Sud, learned Senior Counsel, assisted by Mr. Amit Tiwari. Mr. Sud submits that his client had been the counsel, of the complainant, for ....
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....elies on the statement, of Ram Phal, under Section 164 of the Cr.P.C. She submits that Subhash Sharma was named by Ram Kishan Rai and could not, therefore, plead innocence. So far as Harish Tiwari and Ashok Sagar are concerned, she emphasises the fact that they were caught, practically red-handed, with the extortion money, so that they had no case, whatsoever, for being released from incarceration. Moreover, in the case of Harish Tiwari, she draws attention to the reference, in the Status Report filed in his case, of the fact that, when Harish Tiwari had been granted three weeks interim bail for filing his Income Tax returns, Lalit Rai had lodged a complaint against an unknown person, alleged to have been sent by him, who offered him cash and a handsome job, and threatened him with dire consequences, were he to refuse the offer. As such, learned APP would submit, if Harish Tiwari were to be enlarged on bail at this juncture, there was every possibility of his influencing, and intimidating, the witnesses, and prejudicing the fair course of investigation. She, therefore, prayed that the bail applications of the applicants be rejected. Analysis 26. Article 21 of the Constitution of ....
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....hah vs U.O.I., (2018) 11 SCC 1. The said judgement examined the entire history of bail jurisprudence, starting from Clause 39 of the Magna Carta, the translation of which was quoted, in the said decision,, thus: "No free man shall be seized or imprisoned or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land." 29. The following pronouncement, from Gurbaksh Singh Sibbia (supra) was also approvingly cited: "It was observed that the principle to be deduced from the various sections in the Criminal Procedure Code was that grant of bail is the rule and refusal is the exception. An accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. As a presumably innocent person he is therefore entitled to freedom and every opportunity to look after his own case. A presumably innocent person must have his freedom to enable him to establish his innocence." (Emphasis supplied) 30. The Supreme Court has, in another....
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....ue 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 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 436-A in the Code of Criminal Procedure, 1973. 4. 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 C....
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....inal justice is equally important: "...undoubtedly the courts have to adopt a liberal approach while considering bail applications of accused persons. However, in a given case, if it is found that there is a possibility of interdicting fair trial by the accused if released on bail, this public interest of fair trial would outweigh the personal interest of the accused while undertaking the task of balancing the liberty of the accused on the one hand and interest of the society to have a fair trial on the other hand. When the witnesses are not able to depose correctly in the court of law, it results in low rate of conviction and many times even hardened criminals escape the conviction. It shakes public confidence in the criminal justice delivery system. It is this need for larger public interest to ensure that criminal justice delivery system works efficiently, smoothly and in a fair manner that has to be given prime importance in such situations." (Emphasis supplied) 32. The Supreme Court had, in an earlier decision in Prasanta Kumar Sarkar vs Ashis Chatterjee, (2010) 14 SCC 496, ruled that, among other circumstances, the following factors were required to be borne in mind whil....
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....ose 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. 24. In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge". The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the consti....
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.... is not punitive, but to secure the presence of the accused. The approach of the court, in examining applications for bail, which seek release of the accused during trial, has, therefore, necessarily to centre around the issue of whether continued incarceration of the accused is necessary and imperative, towards securing the end of obtaining his presence when required. Incarceration during trial, therefore, neither chastises nor cures. (ii) While examining the issue, courts are not to presume that the accused would flee justice, were he to be released, and search for evidence indicating to the contrary. Logistically, every accused, who is released during trial, has the potentiality of fleeing. Were this potentiality to be allowed to influence the mind of the court, no accused would be entitled to bail. (iii) While examining applications for bail, the court has to be duly sensitized to the mandate of Article 21 of the Constitution of India, which guarantees freedom to every citizen of India save and except by procedure prescribed by law. Curtailment of personal liberty during trial, has, therefore, to be limited to those cases in which it is absolutely essential, and in which, i....
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....plication of the accused, to subject him to a premature trial, far less to return any finding, even tentative, regarding the justifiability of the charge against him. (vii) The Court cannot, however, while adjudicating a bail application, adopt an entirely accused-centric approach, unmindful of the prevailing public and societal interests hanging in the balance. The right of the accused to liberty, prior to his being found guilty of the charge against him has to be weighed against the public interest involved, in ensuring that the trial proceeds fairly and unhindered. The propensity and potentiality of the accused, were he to be enlarged on bail during trial, to unduly affect the trial process has, therefore, to be necessarily factored in, while deciding the application of the accused for bail. This, in turn, would involve examination of various aspects, such as the antecedents of the accused, any previous incidents (which would involve other criminal cases in which the accused might have been involved) which could indicate that the accused might, if let loose, tamper with the evidence, and the roots of the accused in society. In evaluating this aspect of the matter, the court ha....
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....ncingly answer the request, of Ashok Sagar, for being released on bail. It is an undisputed fact that each of the two non-bailable provisions, under which Ashok Sagar (and, in fact, all the applicants), was charged, is punishable with maximum punishment of 3 years‟ imprisonment, and that Ashok Sagar already stands incarcerated since 23rd October, 2017, i.e. for nearly 8 months. The Status Report does not dispute the fact that, till now, Ashok Sagar has not impeded or interfered with the investigative process in any manner. Neither does it deny the asseverations, in the bail application of Ashok Sagar, regarding his being a resident of Delhi with a twoyear old daughter. The charge-sheet, against him, already stands filed. The "possibility", mooted in the Status Report, of his evading trial or tampering with evidence, is not supported by any material. There is no allegation of Ashok Sagar being involved in any other criminal case, past or present. Besides these, the entire case against him - as also against the other applicants - is arguable, especially regarding the delay in launching of the FIR, and the unexplained enhancement, of the amount of "extortion money" allegedly pa....
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....e IPC, as well as Sections 13(2) and 13(1)(d) of the Prevention of Corruption Act, 1988. It has further been alleged, in the Status Report, that, pursuant to the move, of the Government, to demonetize old currency, Harish Tiwari deposited Rs. 93 lakhs in banks, in relation to which notice stands issued, to him, by the Income Tax Department. The Status Report further states that, over a period of twelve to thirteen years, Harish Tiwari purchased the following properties: (i) a shop at SG Complex, Sector-9, Rohini, Delhi, (ii) G-7, Sector-14, Rohini, Delhi, (iii) F-3/29, Sector-11, Rohini, Delhi, (iv) G-2/137, Rohini, Delhi, (v) Shop No 111, RG Bazar, Sector-11, Rohini, Delhi, (vi) 317, RG Complex, Sector-14, Rohini, Delhi, (viii) residential property at Sector-16, Rohini, Delhi, (ix) 3603, Oberoi Executive Wing, Oberoi Garden City, Goregaon East, Mumbai, (x) D-28, Hauz Khas, Delhi, (xi) 201, 2nd floor, RG Complex-II, Rohini, Sector-9, Delhi, (xii) Show Room 1 & 2, Akshat Residency, Jaipur, (xiii) Villa No A-53, Eden Garden, Jaipur, (xiv) agricultural land at Jaipur, (xv) 403, Akshat-II, Bani Park, Jaipur, (xvi) Plot-105, Sector-15A, NOIDA, (xvii) prop....
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....is court cannot, in conjunction with the above, lose sight of the fact that Harish Tiwari is essentially the main accused in this case, who has, all along, been in touch with the complainant. In fact, as per the complainant, he is the only person who was communicating with him, whether on his own behalf or on behalf of the other co-accused. The gravity of the charges against him is, therefore, necessarily greater than that of the charges against the other co-accused. 45. Holistically seen, and keeping the interests of a fair and unimpeded investigation in mind, I am of the view that, at this stage, Harish Tiwari cannot be said to deserve to be released on bail. Subhash Sharma 46. Insofar as Subhash Sharma is concerned, his propensity to abscond, and avoid cooperating with the investigative process, stands documented. Non-bailable warrants, issued to him, could not be executed, resulting in proceedings, under Section 87 of the Cr.P.C., to declare him a proclaimed offender, having to be instituted on 6th November, 2017. As a result, he has, till now, suffered incarceration only for a period of 5 months. He is also stated to be involved in two other extortion cases, under Sections ....