IN THE COURT OF THE LEARNED DISTRICT & SESSIONS JUDGE, Court complex name COURTS, NEW DELHI
BAIL APPLICATION No. Bail application number OF 20Year of bail application (last two digits)
IN THE MATTER OF:-
Applicant's name: APPLICANT
VERSUS
THE STATE OF (NCT OF DELHI): RESPONDENT
FIR No. FIR number
U/S: 420/406/506/120B IPC
P.S.: Police station
In J.C. since Date of judicial custody
INDEX
| S.NO. | PARTICULARS | PAGES | C. FEE |
| 1. | Bail Application under Section 439 Cr.P.C. for grant of bail to the Applicant. | | |
| 2. | ANNEXURE A-1 – Copy of FIR bearing No. FIR number, P.S. Police station. | | |
| 3. | ANNEXURE A-2 – Copy of order dated First trial court order date of the Ld. M.M., Court complex name Courts, New Delhi. | | |
| 4. | ANNEXURE A-3 – Copy of order dated Second trial court order date passed by the Ld. M.M.-06, South West, Dwarka, New Delhi. | | |
APPLICANT
Through
Place: New Delhi
DatedADVOCATE
IN THE COURT OF THE LEARNED DISTRICT & SESSIONS JUDGE, Court complex name COURTS, NEW DELHI
BAIL APPLICATION No. Bail application number OF 20Year of bail application (last two digits)
IN THE MATTER OF:-
Applicant's name: APPLICANT
VERSUS
THE STATE OF (NCT OF DELHI): RESPONDENT
FIR No. FIR number
U/S: 420/406/506/120B IPC
P.S.: Police station
In J.C. since Date of judicial custody
BAIL APPLICATION UNDER SECTION 439 OF THE CODE OF CRIMINAL PROCEDURE ON BEHALF OF THE APPLICANT / ACCUSED, NAMELY Applicant's name, IN F.I.R. No. FIR number UNDER SECTIONS 420/406/506/120B OF THE I.P.C., REGISTERED AT POLICE STATION Police station, NEW DELHI.
The humble application of the above-named Applicant
MOST RESPECTFULLY SHOWETH:-
1.That the Applicant is a peace-loving and law-abiding citizen of India. It is submitted that the Applicant has full faith in the administration of justice and has therefore approached this Hon'ble Court in the hope of obtaining justice.
2.That the Applicant is filing the present application under Section 439 Cr.P.C. in FIR No. FIR number under Sections 420/406/506/120B of the IPC, registered at Police Station Police station on FIR registration date. The Applicant has been in judicial custody since Date of judicial custody.
Copy of FIR No. FIR number under Sections 420/406/506/120B of the IPC registered at Police Station Police station is annexed as Annexure P-1.
3.That the Applicant has been arrayed as an accused in the above-mentioned FIR without any specific allegation against her. It is submitted that the said FIR has been registered on the basis of a false, baseless and frivolous complaint made by the Complainant.
4.That the brief facts of the case are as under:-
A.It is the case of the prosecution that the Complainant had commenced a consultancy business in March, 2015 along with one Mr. Complainant's business partner's name in the name and style of M/s. Firm name at Office address, New Delhi-1100Pin code (last two digits).
B.It is further the case of the Complainant that in March, 2015, Mr. Applicant's husband's name, husband of the Applicant, approached the Complainant in the presence of Mr. Complainant's business partner's name and requested for a sum of Rs. First loan amount as he was in urgent need of the same. It is further alleged that the said borrowed amount was returned by Mr. Applicant's husband's name in First loan return month.
C.It is further stated by the Complainant that in August, 2015, Mr. Applicant's husband's name, along with Mr. Second accomplice's name, came to the office of the Complainant and requested for a sum of Rs. Second loan amount, stating that they were in urgent need of the said amount. It is further alleged that the said amount was given to Mr. Second accomplice's name upon his assurance, and that the said amount was returned by the accused person in Second loan return month. It is further alleged that the said amounts were returned only in order to gain the confidence and trust of the Complainant.
D.It is further stated by the Complainant that in April, 2016, Mr. Applicant's husband's name telephoned the Complainant and informed him that they had secured the said project, and that the Complainant would be required to come to Hotel name Hotel along with a sum of Rs. Amount taken to hotel / handed over. It is further alleged that the Complainant reached the said hotel, where he met the Applicant along with the other accused, who asked the Complainant to initially pay a sum of Rs. Investment share amount demanded towards his share of investment. The Complainant, upon asking for some time, is alleged to have in good faith handed over a sum of Rs. Amount taken to hotel / handed over to the Applicant / Accused No. 2, Ms. Accused No. 2's name.
5.That the Applicant filed her first bail application before the Ld. Trial Court of Sh. Trial court judge's name, Ld. M.M., Court complex name Courts, New Delhi; however, the Ld. Trial Court did not grant bail on the ground that the investigation was still ongoing. A true copy of the order dated First trial court order date of the Ld. Trial Court, Court complex name, is annexed as Annexure P-2. The Ld. Trial Court specifically observed in the order-sheet that "the present matter admittedly involves huge amount of cash as such the trail of money is required to be traced. Needless to state that misdoing, if any on the part of complainant is found out during the course of investigation it would also be dealt with and the culpability if any is discovered then the law would take its course against him as well."
6.It is submitted that the Applicant again moved a second bail application before the Ld. Trial Court of Sh. Trial court judge's name, Ld. M.M., Court complex name Courts, New Delhi; the same was dismissed vide order dated Second trial court order date, even though the IO, till date, has not been able to collect any proof from the Complainant regarding the payments allegedly made to the accused persons.
Copies of the orders dated First trial court order date and Second trial court order date passed by the Ld. Trial Court are annexed as Annexure P-3.
7.It is further submitted that the said offence, being an act of an individual, cannot be attributed to the Applicant under the garb of Sections 120B/34 of the IPC, which are reproduced hereunder:-
"120B. Punishment of criminal conspiracy.—
\
[(1)]
Whoever is a party to a criminal conspiracy to commit an offence punishable with death, Section reference in Section 120B text or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.
\
[(2)]
Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine, or with both.]
34. Acts done by several persons in furtherance of common intention.—When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.]"
Since the alleged act is, as stated hereinabove, an individual act, no liability of any kind for the said offence can be imposed upon the Applicant.
8.It is further submitted that there is no evidence against the Applicant regarding her complicity in the alleged offence. Furthermore, there is no indication whatsoever of the Applicant's involvement in the present case; as such, the Applicant is entitled to be granted bail.
9.That the Applicant cannot be arraigned as an accused in the present case merely on the basis of probabilities and presumption.
10.That the Applicant has not committed any of the offences as alleged in the FIR lodged by the informant. It is purely out of vengeance and connivance that the Applicant has been falsely implicated in the present case. Even prima facie, there is nothing to show the commission of the alleged offences; in fact, the present FIR does not disclose any participation of the Applicant in the case.
11.That there is not even an iota of evidence collected by the police to show that the Applicant committed any offence. Even prima facie, there is nothing to show the commission of an offence under Sections 420/406/506/120B of the IPC.
12.That the investigation in the present FIR has been completed; however, the charge sheet is yet to be filed by the police officials.
13.That the applicant is filing the present bail application before this Hon'ble Court on, amongst others, the following grounds, which are taken without prejudice to one another:
-: GROUNDS :-
A.Because the applicant/accused has been falsely implicated in the above-noted case, and the allegations made therein are false, fabricated, malafide and unfounded, and shall have no legs to stand upon at the conclusion of the trial, as the applicant/accused is an innocent person and has not committed any offence whatsoever.
B.Because the investigation in this case has been completed by the prosecution. Except for the belated and untrustworthy statement of the complainant, there is nothing else to show that the applicant has committed the alleged offence.
C.Because the applicant did not even know the complainant at the alleged time of the incidents. It is submitted that there was no communication between the applicant and the complainant during the entire alleged period.
D.Because the present FIR does not disclose any participation of the applicant in the case, and no case whatsoever is made out against the applicant.
E.Because the complainant has alleged that he had paid a sum of Amount of cash alleged to have been paid in cash during the first week of Month and year of the first alleged payment to the applicant, and a further sum of Amount of cash alleged to have been paid in cash during the last week of Month and year of the first alleged payment to the co-accused, Name of first co-accused and Name of second co-accused. It is most respectfully submitted that on Date of announcement of demonetization, the Hon'ble Prime Minister of the country had announced the demonetization of old currency, whereafter the entire country faced hardship in procuring new currency notes. It is, however, surprising that the complainant allegedly paid an amount to the tune of Total amount of cash alleged to have been paid in cash in the month of Month and year of the first alleged payment, which falls after the said demonetization, when new currency notes were not even readily available. It is pertinent to mention that this factum casts serious doubt upon the allegations of the complainant.
F.Because the Hon'ble Supreme Court has held that the source of income and the means to advance such huge amounts need to be proved and stated in cases pertaining to advances and payments. It is imperative to point out that the Hon'ble Supreme Court in the case of K. Prakashan v. P.K. Surenderan held that where a huge amount of money is advanced as a loan, the person who has purportedly advanced the loan must also establish solvency to the extent of the loan, whether through bank accounts or by other means.
G.Because on Alleged date of Section 41-A Cr.P.C. notice, the applicant was never served with a notice under Section 41-A Cr.P.C. by the Investigating Officer to join the investigation, and the applicant has been residing at Place of residence of the applicant for more than Number of years of residence years.
H.Because there is an unexplained delay of Delay in years in registering the FIR years in lodging the FIR, as the transaction took place in the year Year in which the transaction took place and the FIR was registered in the year Year in which the FIR was registered.
I.Because the applicant was arrested vide kalandra bearing DD No.Arrest kalandra DD number, dated Date of arrest of the applicant, and thereafter, the Investigating Officer in FIR No.FIR number filed an application for the interrogation and formal arrest of the applicant, and the Ld. M.M. was pleased to grant two days' police custody to the I.O. of the present FIR. At present, the applicant is in police custody.
J.Because the applicant was never aware of the present FIR pending against her and no notice has been served upon her. The applicant has Number of minor children of the applicant minor children, namely Details of the minor children of the applicant, and there is no one to look after them in the absence of the applicant.
K.Because a complaint under Section 138 of the N.I. Act was filed by the complainant against the applicant in respect of the cheques issued by her and others; however, till date, the complainant has neither appeared nor filed a single document to prove the alleged huge cash transactions during the country-wide imposition of demonetization. This demonstrates the conduct of the complainant, who has filed a false and frivolous complaint against an innocent person, which is evident from the order sheets.
L.Because the complainant has levelled false, baseless and frivolous allegations, and there are no specific allegations against the applicant in the said FIR. It is submitted that the ingredients required to constitute the alleged criminal offence are not made out even from a bare reading of the complaint.
M.Because there is no material on record to establish even a semblance of the offence alleged against the applicant.
N.Because the police officials have not taken any action against the main accused persons, namely Name of first co-accused and Name of second co-accused, and the applicant has been falsely implicated in the present FIR.
O.That it may not be out of context to point out that the Hon'ble Supreme Court in the matter of Sanjay Chandra Vs. CBI (2012) 1 SCC 40 has once again upheld the fundamental principle of criminal jurisprudence of "bail and not jail" and has observed that it has been stated time and again that bail is the rule and committal to jail an exception. It has also been observed that the refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution.
P.That in the case of Siddharam Satlingoppa Mhetre Vs. State of Maharashtra (2011) 1 SCC 694, the Hon'ble Court observed:
"Personal liberty is a very precious fundamental right and it should be curtailed only when it becomes imperative according to the peculiar facts and circumstances of the case."
Q.The Hon'ble Apex Court in the case of Vaman Narain Ghiya Vs. State of Rajasthan Citation of Vaman Narain Ghiya case, held as under:
"8. The law of bail, like any other branch of law, has its own philosophy, and occupies an important place in the administration of justice and the concept of bail emerges from the conflict between the police power to restrict liberty of a man who is alleged to have committed a crime, and presumption of innocence in favour of the alleged criminal. An applicant is not detained in custody with the object of punishing him on the assumption of his guilt."
R.That the grant or refusal of bail lies within the discretion of the Court. The grant or denial thereof is regulated, to a large extent, by the facts and circumstances of each particular case. At the same time, the right to bail is not to be denied merely on account of the sentiments of the community against the applicant. The primary purposes of bail in a criminal case are to relieve the applicant of imprisonment, to relieve the State of the burden of keeping the applicant in custody pending trial, and, at the same time, to keep the applicant constructively in the custody of the Court, whether before or after conviction, so as to ensure that the applicant submits to the jurisdiction of the Court and remains in attendance thereon whenever his presence is required.
S.That there is no good reason to detain the accused in custody, more particularly after the completion of the investigation. The Hon'ble Supreme Court in the case of State of Kerala Vs. Raneef (2011) 1 SCC 784 has observed:
"in deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail."
T.In the case of State of Rajasthan v. Balchand, (1977) 4 SCC 308, the Hon'ble Supreme Court opined:
"That the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. We do not intend to be exhaustive but only illustrative."
“It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail. So also the heinousness of the crime. Even so, the record of the petitioner in this case is that, while he has been on bail throughout in the trial court and he was released after the judgment of the High Court, there is nothing to suggest that he has abused the trust placed in him by the court; his social circumstances also are not so unfavorable in the sense of his being a desperate character or unsocial element who is likely to betray the confidence that the court may place in him to turn up to take justice at the hands of the court. He is stated to be a young man of 27 years with a family to maintain. The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the police station at Baren once every fortnight.”
U.That it is a basic principle of criminal jurisprudence that the applicant is to be considered innocent until held guilty.
V.That Section 439 Cr.P.C. itself provides that the court may, while granting bail, impose the condition that such person shall not commit an offence similar to the offence of which he is accused or suspected.
W.That the applicant is an honest person of clean antecedents, has no influence over the prosecution witnesses, and there is no likelihood of tampering with them.
X.That, as per the jurisprudence of bail, the aim is to achieve a balance between personal liberty and social security. A first-time offender having no criminal antecedents is to be considered separately. However, where the applicant has deep roots in society, detention should be avoided.
Y.That the applicant/accused has committed no crime. The present case is the outcome of sheer vengeance, as the complainant bears a vendetta against the applicant and made false statements regarding the applicant/accused, who has been falsely implicated in the present case.
14.That the applicant is ready and willing to furnish surety to the entire satisfaction of this Hon’ble Court.
15.That it is respectfully submitted that the applicant has a completely clean record. The applicant has never been convicted in any case in the past. It cannot, under any circumstances, be construed that the applicant has a bad record suggesting that she is likely to commit similar or serious offences while on bail.
16.That the applicant has deep roots in society and there is absolutely no chance of the applicant absconding from the course of justice or tampering with the evidence.
P R A Y E R
It is, therefore, most respectfully prayed that this Hon’ble Court may graciously be pleased to:-
a)Grant bail to the applicant and release the applicant on bail in FIR No. FIR number under Sections 420/406/506/120B of the IPC registered at Police Station Police station, New Delhi, in the interest of justice and on such terms and conditions as this Hon’ble Court may deem fit and proper.
b)Pass any other order as this Hon’ble Court may deem necessary in the circumstances of the present case.
FOR THIS ACT OF KINDNESS, THE APPLICANT SHALL ALWAYS PRAY.
APPLICANT
Through
Place: New Delhi
Dated:
Advocate
IN THE COURT OF LD. DISTRICT & SESSIONS JUDGE, DWARKA COURTS, NEW DELHI.
BAIL APPLICATION No. Bail application number OF 2022.
IN THE MATTER OF :-
Applicant's name: APPLICANT
VERSUS
THE STATE (NCT OF DELHI): RESPONDENT
AFFIDAVIT
I, Deponent's name, S/o Sh. Deponent's father's name, R/o Deponent's address, presently at New Delhi, do hereby solemnly affirm and state as under:
1.That the deponent is the parokar and brother of the applicant in the above bail matter, is well conversant with the facts and circumstances of the present case, and is competent to swear this affidavit.
2.That the accompanying Bail Application under Section 439 Cr.P.C. has been drafted by the counsel for the applicant on my instructions. I state that I have perused the same, and I state that, except for the legal averments contained therein, the contents thereof are true and correct to the best of my knowledge and belief.
3.That no part of this affidavit is false and nothing material has been concealed therefrom.
DEPONENT
VERIFICATION:-
I, the deponent named hereinabove, do hereby solemnly affirm and verify that the contents of the above affidavit are true and correct to the best of my knowledge and belief. No part of it is false, and nothing material has been concealed therefrom. Verified at Delhi on this day of Month and year of verification.
DEPONENT