Kuldeep Kumar v. State of Punjab

The pe""oner apprehending arrest in the FIR cap"oned above, has come up before this Court under Sec"on 438 CrPC seeking an"cipatory bail.

2. In paragraph 19 of the bail pe""on, the accused declares that he has no criminal antecedents.

3. Pe""oner's counsel prays for bail by imposing any stringent condi"ons and are also voluntarily agreeable to the condi"on that "ll the conclusion of the trial, the pe""oner shall keep only one mobile number, which is men"oned in AADHAR card, if any, and within fiBeen days undertakes to disconnect all other mobile numbers. The pe""oner contends that custodial interroga"on and pre-trial incarcera"on would cause an irreversible injus"ce to the pe""oner and family.

4. The state's counsel opposes the bail. Reply dated 07.03.2024 filed by State counsel today in the Court is taken on record. Copy thereof has been supplied to counsel for the pe""oner. JYOTI 2024.03.07 16:09 I attest to the accuracy and integrity of this order/judgment. 1 CRM-M-11403-2024

5. The prosecu"on case is being taken from reply dated 07.03.2024, which reads as follows: “4. That a(cid:9)er the crea(cid:13)on of new road alignment in the above men(cid:13)oned five villages the accused Anand Sagar Sharma the then SDM-cum-CALA Hoshiarpur involved his near and close persons namely Harpinder Singh etc. That accused Harpinder Singh started purchasing the agricultural land in villages Khawaspur and Hardokhanpur in his own name and in the name of his family members/rela(cid:13)ves/close associates. Therea(cid:9)er, in connivance and conspiracy with accused Anand sagar sharma, the accused Harpinder Singh and other accused men(cid:13)oned in this FIR received compensa(cid:13)on on colony/residen(cid:13)al rates, which is totally unfair and illegal in the eyes of law. It is worth while to men(cid:13)on here that the present SIT while during the course of inves(cid:13)ga(cid:13)on obtained reports from the concerned departments to verify and inves(cid:13)gate the facts as following: (i) The SIT obtained report dated 04/10/2023 from the office of District town planner Hoshiarpur and as per this report/record no CLU/Lay out/Site plan/NOC were issued by the then office. In fact there is no communica(cid:13)on between any of the accused who filed applica(cid:13)on under 3C and the Office of District town planner with regard to same. It is crystal clear from the report of DTP dated 4/10 /2023 that there is no basic facility like street lights/drainage system/water supply etc. available even as on date as per the record. (Copy of the report dated 4/10/2023 is a9ached as annexure- 2). (ii) That during the course of inves(cid:13)ga(cid:13)on the report from PSPCL was also obtained. While in the said report dated 10/10/2023 it is specifically men(cid:13)oned that none of the accused who filed applica(cid:13)on under 3C has applied for issuance/installa(cid:13)on of the electricity meter nor the same has been issued by the department as per the office record. (The copy of said PSPCL report dated 10/10 / 2023 is a9ached as annexure-3). (iii) That the current/latest report from the revenue department was also obtained by the SIT during the course of inves(cid:13)ga(cid:13)on and as per the said report dated 21/9/2023 there is no colony/residen(cid:13)al area in the said land described by the accused while filing applica(cid:13)on under 3C. Even the said area is surrounded by agricultural land with crops as well. (The copy of revenue report dated 21/9 /2023 is a9ached as annexure-4).

5. That as per the law laid down in the Na(cid:13)onal Highway Act 1956 under sec(cid:13)on 3D(2);- "On the publica(cid:13)on of the declara(cid:13)on under sub-sec(cid:13)on (1), the land shall vest absolutely in the Central Government free from all encumbrances." But JYOTI 2024.03.07 16:09 I attest to the accuracy and integrity of this order/judgment. 2 CRM-M-11403-2024 the accused and the then SDM cum CALA Anand sagar sharma, in connivance and conspiracy with other accused and by abusing process of law kept transferring the ownership (cid:13)tles in the changed khasra numbers in 3A schedule by him even a(cid:9)er no(cid:13)fica(cid:13)on under 3D /3G even when the names of actual owners of the land were already published in the no(cid:13)fica(cid:13)on under 3D /3G in order to give compensa(cid:13)on to other accused and conspirators in this ma9er. It is also per(cid:13)nent to men(cid:13)on here that during the course of inves(cid:13)ga(cid:13)on the actual owners of the land came forward and got recorded their statements that the accused have cheated and defrauded them and their compensa(cid:13)on amount has been grabbed by them, in connivance and conspiracy with each other.

6. Detail of sequen(cid:13)ally published no(cid:13)fica(cid:13)ons regarding the acquisi(cid:13)on of land under Na(cid:13)onal Highway 70 (Now NH-3) (Jalandhar-Chintpurani) as following: Sr. No. No"fica"ons Date of Publica"on in newspaper

3. 3A 3 D 3 G

14.07.2015

10.11.2015 & 11.11.2015

01.12.2015

6. Counsel for the pe""oner seeks bail on the ground that there is no jus"fica"on of custodial interroga"on and evidence available against him is that he has put his signatures on behalf of co-accused as purchaser in two sale deeds.

7. State counsel opposes the bail by referring to paragraph 7 of the reply dated

07.03.2024, which reads as follows: “That the accused Kuldeep Kumar is well known to co-accused Harpinder Singh. The accused/pe(cid:13)(cid:13)oner in connivance and conspiracy with co-accused Harpinder Singh appeared on behalf of co-accused Poonam Gill, co-accused Simarjit Singh, co-accused Charnjeet Kaur and Amanjot Singh and Chand Rani at the (cid:13)me of 4 sale deeds respec(cid:13)vely bearing number dt 22-03-2016, 8086 dated 28-03-2016, 8058 dated 22-03-2016 and 8056 dated 22-03-2016 got them registered in the name of co-accused even a(cid:9)er the no(cid:13)fica(cid:13)on under 3D and 3G. It is per(cid:13)nent to men(cid:13)on here that the co-accused Poonam Gill, co- accused Simarjit Singh, is niece and nephew of co-accused Harpinder Singh. This way the accused/pe(cid:13)(cid:13)oner cheated and defraud real owners of the land and got co-accused Poonam Gill, co-accused Simarjit Singh and Caranjeet Kaur JYOTI 2024.03.07 16:09 I attest to the accuracy and integrity of this order/judgment. 3 CRM-M-11403-2024 grabbed the compensa(cid:13)on amount which belonged to real owners and which is in Lakhs.”

8. Given the penal provisions imposed and the sentence provided by the Legislature, the nature of allega"ons coupled with the fact that the pe""oner is a first offender, and one of the relevant factors would be to provide an opportunity to course correct. Even a primafacie perusal of paragraphs 2 and 3 of the bail pe""on needs considera"on for bail.

9. I have heard counsel for the par"es and gone through the record and its analysis would lead to the outcome that pe""oner’s role is only to put his signatures on behalf of co-accused (purchaser) and they are not beneficiary at all, as such, neither it is a case for custodial interroga"on nor pre trial incarcera"on.

10. In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Cons"tu"onal Bench of Supreme Court held that the bail decision must enter the cumula"ve effect of the variety of circumstances jus"fying the grant or refusal of bail. In Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are en"tled to bail if the Court concerned concludes that the prosecu"on has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its sa"sfac"on for the need to release such person on bail, in the given fact situa"ons. The rejec"on of bail does not preclude filing a subsequent applica"on. The courts can release on bail, provided the circumstances then prevailing require, and a change in the fact situa"on. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court no"ceably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances sugges"ve of fleeing from jus"ce or thwar"ng the course of jus"ce or crea"ng other troubles in the shape of repea"ng offences or in"mida"ng witnesses and the like by the pe""oner who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the pe""oner to avoid the course of jus"ce and must weigh when considering the ques"on of jail. So also, the heinousness of the crime. In Gudikan" Narasimhulu v Public Prosecutor, (1978) 1 SCC 240, (Para 16), Supreme Court held that the delicate light of the law favors release unless countered by the nega"ve criteria necessita"ng that course. In Prahlad Singh Bha" v NCT, Delhi, (2001) 4 SCC 280, Supreme Court highlighted one of the factors for bail to be the public or the State's immense interest and similar other considera"ons. In Dataram Singh v State of ULar Pradesh, 2018:INSC:107 [Para 7], (2018) 3 SCC 22, (Para 6), Supreme Court held JYOTI 2024.03.07 16:09 I attest to the accuracy and integrity of this order/judgment. 4 CRM-M-11403-2024 that the grant or refusal of bail is en"rely within the discre"on of the judge hearing the maLer and though that discre"on is unfeLered, it must be exercised judiciously, compassionately, and in a humane manner. Also, condi"ons for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

11. The possibility of the accused influencing the inves"ga"on, tampering with evidence, in"mida"ng witnesses, and the likelihood of fleeing jus"ce, can be taken care of by imposing elabora"ve and stringent condi"ons. In Sushila Aggarwal v. State(NCT of Delhi) 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Cons"tu"onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric"ve condi"ons. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, Supreme Court holds that while exercising power Under Sec"on 438 of the Code, the Court is duty-bound to strike a balance between the individual's right to personal freedom and the right of inves"ga"on of the police. While exercising utmost restraint, the Court can impose condi"ons countenancing its object as permissible under the law to ensure an uninterrupted and unhampered inves"ga"on.

12. 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, subject to the following terms and condi"ons, which shall be over and above and irrespec"ve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

13. In Madhu Tanwar v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M- 27097-2023, decided on 29-05-2023, this court observed, [10] The exponen"al growth in technology and ar"ficial intelligence has transformed iden"fica"on techniques remarkably. Voice, gait, and facial recogni"on are incredibly sophis"cated and pervasive. Impersona"on, as we know it tradi"onally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from jus"ce, then in such cases, appropriate condi"ons can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss. [21] In this era when the knowledge revolu"on has just begun, to keep pace with exponen"al and unimaginable changes the technology has brought to human lives, it is only fiQng that the dependence of the accused on surety is minimized by giving alterna"ve op"ons. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate. JYOTI 2024.03.07 16:09 I attest to the accuracy and integrity of this order/judgment. 5 CRM-M-11403-2024

14. Given above, provided the pe""oner is not required in any other case, the pe""oner shall be released on bail in the FIR cap"oned above, in the following terms: (a). Pe""oner to furnish personal bond of Rs. Ten thousand (INR 10,000/); AND (b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the sa"sfac"on of the concerned Inves"gator/SHO, before whom the bonds are required to be furnished. When the bonds are to be furnished before a Judicial Magistrate, then in case of the non-availability of the concerned Judicial Magistrate, to any other nearest Ilaqa Magistrate/duty Magistrate. Before accep"ng the surety, the concerned officer must sa"sfy that if the accused fails to appear in court, then such surety can produce the accused before the court. OR (b). Pe""oner to hand over to the concerned inves"gator a fixed deposit for Rs. Ten thousand only (INR 10,000/-), with the clause of automa"c renewal of the principal and the interest rever"ng to the linked account, made in favor of the ‘Chief Judicial Magistrate’ of the concerned district, or blocking the aforesaid amount in favour of the concerned ‘Chief Judicial Magistrate’. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be permissible for the pe""oner to prepare an account payee demand draB favouring concerned Chief Judicial Magistrate for a similar amount. (c). Such court shall have a lien over the funds un"l the case's closure or discharged by subs"tu"on, or up to the expiry of the period men"oned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the en"re amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor. (d). The pe""oner is to also execute a bond for aLendance in the concerned court(s) as and when asked to do so. The presenta"on of the personal bond shall be deemed acceptance of the declara"ons made in the bail pe""on and all other s"pula"ons, terms, and condi"ons of sec"on 438(2) of the Code of Criminal Procedure, 1973, and of this bail order. JYOTI 2024.03.07 16:09 I attest to the accuracy and integrity of this order/judgment. 6 CRM-M-11403-2024 (e). While furnishing personal bond, the pe""oner shall men"on the following personal iden"fica"on details:

1. AADHAR number

2. Passport number, (If available), when the court aLes"ng the bonds thinks appropriate or considers the accused as a flight risk.

3. Mobile number (If available)

4. E-Mail id (If available)

15. The pe""oner is directed to join the inves"ga"on within seven days and also 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. 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, it will be open for the prosecu"on to seek cancella"on of the bail. Whenever the inves"ga"on occurs within the police premises, the pe""oner shall not be called before 8 AM, let off before 6 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

16. The pe""oner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.

17. Pe""oner to comply with their undertaking made in the bail pe""on, made before this court through counsel as reflected at the beginning of this order. If the pe""oner fails to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the vic"m/complainant may file any such applica"on for the cancella"on of bail, and the State shall file the said applica"on.

18. The pe""oner is directed not to keep more than one prepaid SIM, i.e., one pre- paid mobile phone number, "ll the conclusion of the trial; however, this restric"on is only on prepaid SIMs [mobile numbers] and not on post-paid connec"ons or landline numbers. The pe""oner must comply with this condi"on within fiBeen days of release from today. The concerned DySP shall also direct all the telecom service providers to deac"vate all prepaid SIM cards and prepaid mobile numbers issued to the pe""oner, JYOTI 2024.03.07 16:09 I attest to the accuracy and integrity of this order/judgment. 7 CRM-M-11403-2024 except the one that is men"oned as the primary number/ default number linked with the AADHAAR card and further that "ll the no objec"on from the concerned SHO, the mobile service providers shall not issue second pre-paid SIM/ mobile number in the pe""oner’s name. Since, as on date, in India, there are only four prominent mobile service providers, namely BSNL, Airtel, Vodafone-Idea, and Reliance Jio, any other telecom service provider are directed to comply with the direc"ons of the concerned Superintendent of Police/Commissioner of Police, issued in this regard and disable all prepaid mobile phone numbers issued in the name of the pe""oner, except the main number/default number linked with AADHAR, by taking such informa"on from the pe""oner’s AADHAR details or any other source, for which they shall be legally en"tled by this order. This condi"on shall con"nue "ll the comple"on of the trial or closure of the case, whichever is earlier. In Vernon v. The State of Maharashtra, 2023 INSC 655, [para 45], while gran"ng bail under Unlawful Ac"vi"es (Preven"on) Act, 2002, Supreme Court had directed imposi"on of the similar condi"on, which reads as follows, “(d) Both the appellants shall use only one Mobile Phone each, during the "me they remain on bail and shall inform the Inves"ga"ng Officer of the NIA, their respec"ve mobile numbers.”

19. During the trial's pendency, if the pe""oner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condi"on as s"pulated in this order, it shall always be permissible to the respondent to apply for cancella"on of this bail. It shall further be open for any inves"ga"ng agency to bring it to the no"ce of the Court seized of the subsequent applica"on that the accused was earlier cau"oned not to indulge in criminal ac"vi"es. Otherwise, the bail bonds shall remain in force throughout the trial and aBer that in Sec"on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi"ons.

20. The condi"ons men"oned above imposed by this Court are to endeavour that the accused does not repeat the offence and to provide vic"m a sense of security. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Pe""on (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon’ble Supreme Court holds that “The bail condi"ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor"onal to the purpose of imposing them. The courts while imposing bail condi"ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi"ons that would result in the depriva"on of rights and liber"es must be eschewed.” JYOTI 2024.03.07 16:09 I attest to the accuracy and integrity of this order/judgment. 8 CRM-M-11403-2024

21. Any Advocate for the pe""oner and the Officer in whose presence the pe""oner puts signatures on personal bonds shall explain all condi"ons of this bail order in any language that the pe""oner understands.

22. If the pe""oner finds bail condi"on(s) as viola"ng fundamental, human, or other rights, or causing difficulty due to any situa"on, then for modifica"on of such term(s), the pe""oner may file a reasoned applica"on before this Court, and aBer taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condi"on.

23. This order does not, in any manner, limit or restrict the rights of the Police or the inves"ga"ng agency from further inves"ga"on as per law.

24. In case the Inves"gator/Officer-In-Charge of the concerned Police Sta"on arraigns another sec"on of any penal offence in this FIR, and if the new sec"on prescribes maximum sentence which 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 added 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.

25. Any observa"on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.

26. In return for the protec"on from incarcera"on, the Court believes that the accused shall also reciprocate through desirable behavior.

27. There would be no need for a cer(cid:13)fied copy of this order for furnishing bonds, and any Advocate for the Pe(cid:13)(cid:13)oner can download this order along with case status from the official web page of this Court and a9est it to be a true copy. In case the a9es(cid:13)ng officer wants to verify the authen(cid:13)city, such an officer can also verify its authen(cid:13)city and may download and use the downloaded copy for a9es(cid:13)ng bonds. Pe##on allowed in aforesaid terms. All pending applica"ons, if any, stand disposed. (ANOOP CHITKARA) JUDGE

07.03.2024 Jyo"-II Whether speaking/reasoned: Whether reportable: JYOTI 2024.03.07 16:09 I attest to the accuracy and integrity of this order/judgment. Yes No. 9