Hitesh Kumar vs State of Haryana And Others

Sumeet Goel, J

The present petition is the seecond attempt under Section 482 of Bharatiya Nagarik Suraksha Sanhita, 2023 (hereinafter to be referred as ‘the BNSS’) for grant of pre-arrest/anticipatory bail to the petitioner in case bearing FIR No.0106 dated 07.06.2021, registered for the offences punishablle under Section 406, 420 of IPC (Sections 467, 468, 471, 120-B of IPC added later on) at Police Station Sahaa, District Ambala.

The gravamen of the FIR perrtains to allegations of cheating and criminal breach of trust involving the complainant. The complainant namely Sarojani Nautiyal, resident of Varrun Enterprise, 383 HSIIDC, Saha, Ambala, Haryana, alleged that she was cheated by accused Hitesh Kummar (petitioner herein), Kamal Singh, Deeppak, Verma and Deepak Pandey pretending to be insurance agents of PNBB MetLife, Chandigarh. As per the complainaant, the aforesaid persons had sole her a fake insurance policy of amounting to Rs.12,40,000/- and isssued a false receipt showing Rs.15,00,000/- with rebate included. When the complainant later visited the PNB MetLife office in Sector 17, Chandigarh, she was informed that these persons are not the employees/agents of the company and that the receeipt given to her was fake. The complainantt alleged that the she had suffered financial loss on account of the fraud played upon her by the aforesaid accused. On these set of allegations, instant FIR was registered and investigattion ensued.

The petitioner had earlier applied for grant of pre-arrest/antiicipatory bail before this Court which was dismissed on 16.08.20221. The relevant part of said order reads as under:-

“It is not case a where thhe petitioner is claiming himself to be a stranger to the allegations alleged against him in the FIR. It has been further admitted that for selling the fake policies to the complainant, a sum of Rs.2 lakhs was given to the petitioner out of the total of Rs.12.5 lakhs received, though as per thhe petitioner the said amount has been taken away by co-accused, namely, Kamal Singh. Trail of the amount received by selling these forged policies needs to be ascertained for whhich the custodial interrogation is necessary. Not only this, the police needs to carry out investigation so as to find out whether other innocent peoople have been sold forged polices by the petitioner, which can only be done by way of custodial interrogation. Keeping in view the facts and circumstances of this case and the allegations alleged against the peetitioner, no ground is made out to grrant the benefit of anticipatory bail. Dismissed. However, it is made clear that anything observed herein shall not be construed to be an expressioon of any opinion on the merits of the case.”

Thereafter, the present petiition (i.e. the second petition for grant of anticipatory/pre-arrest bail) has been preferred by the petitioner on 08.09.20225.

Learned counsel for the petitioner has iterated that he is working as a clerk with Punjab National Bank for the past 08 years and has been falsely implicated solely on account of his acquaintance with co-accused Kamal Singh and his associates Ajay Kumar and Des Raj. Learnned counsel has further iterated that the petitiioner alongwith co-accused Kammal Singh hass jointly sold only one insurance policy to the complainant in the year 2019 which is not part of the present dispute. The allegatioons contained in the FIR pertains to a third policy wherein amount of Rs.8,40,000/- and Rs.2,00,000/- were receeived in cash by co-accused Kammal Singh and one cheque of Rs.2,00,000/- isssued to the petitioner was allegged taken awaay by co-accused Kamal Singh. It has been further iterated that the sister of the petitioner, who has also been implicated into the FIR in question, has already been granted the concession of anticipatory bail. Accordingg to learned counsel, the petittioner has already entered intoo a compromise with the complainant on 08.07.2025 and paid Rs.2,00,000/- by away of demand draft. Learned counsel has further argued that the petitioner is innocennt and has been falsely arrayed as an accused. Furthermore, nothiing is to be recovered from the possessionn of the petitioner and hence his custodial interrogation is neither warranteed nor justified. Moreover, theree is no likelihood of the petitioner absconding from the process of justice in case he is enllarged on pre-arrest bail. On the basis of the aforementionned submissioons, the grant of the instant petition is entreated for.

Per contra, learned State counsel has opposed the grant of anticipatoory bail to the petitioner by arguing that the allegations raissed against thhe petitioner are serious in nature. Learned State counsel has iterated that the petitioner is not merelly an acquaintance but an active participannt in the fraudulent scheme. According to learned State counssel, the receippt of cheque of Rs.2.00 lacs by the petitioner from the complainant indicates his involvement in the conspiracy. The custodial interrogation of the petitiooner is necessary to uncover the full extent of the conspiracy and trace the money trail. Moreover, the part payment and compromise do not absolve the petitioner of criminal liabilitty under Sections 406 and 420 of IPC which are serious and non-compoundable. In this view of the mattter, dismissal of the instant petition is prayed for.

Learned counsel appearing for the complainant has raissed submissioon in tandem with the learned State counsel. Learned counsel has emphasized that there is no compromisee entered into by the complainant with the petitioner and hence no ground is made out for the grant of anticipatoory bail to the petitioner.

I have heard the learned couunsel for the rival parties and haave gone through the available record of the case.

It would be apposite to refeer herein to a judgment passed by this Court in Bhisham Singh vs. State of Haryana, 2024:PHHC:048105; relevant whereof reads as under:-

The pivotal issue, in any plea for grant of bail whetther anticipatory bail or regular bail, is the liberty of an individual. Libeerty occupies a place of pride in our socciety and jurisprudence. The framerss of the Constitution hence provided inteer alia in Article 21 of our Constituttion that no person shall be deprived of his personal liberty except accordingg to procedure established by law. The Cr.P.C. is one such procedural law whhich permits curtailment of liberty of antisocial and antinational elements. Hence while interpreting any aspect pertaiining to bail, a Court ought to keep the above concept in cardinal focus.

10.1 An analytical perusal of Cr.P.C. would elucidate that this stattute does not contain any provision relatable to maintainability or otherwisee of second/successive bail petitions, inccluding one(s) seeking anticipatory bail. Once there is no statutory prohibitiion provided for in law, a Court is not logically empowered to import into it such prohibitions especially in casee of codified and legislated law. It is triite law that Courts ought not to read a provision in codified law which has not been specifically provided for by the legislature especially when such reading results into deprivation of rights. 10.2 The Hon’ble Supreme Court in case of Babu Singh case (suppra) has held that rejection of a bail pettition does not, by itself, forbid a Coourt from considering another one later in point of time. It can be safely inferred that the decision of a Court qua baiil petition (whether regular bail petittion or anticipatory bail petition) is essentially an interlocutory order and hence the concept of res judicata does not apply. Almost all the Hon’ble High Courts have enunciated the view thaat second/successive plea(s) for grant of anticipatory bail is maintainable albeit with some circumspection and material change of circumstance(s)) being a prime requirement. The full bench of Hon’ble Rajasthan High Coourt in case of Ganesh Raj case (supra), the full bench of Hon’ble Calcutta High Court in case of Sri Sudip Sen case (supra), the division bench of Hon’blle Andhra Pradesh High Court in case of K.Gajendra Naidu case (supra), the division bench of Hon’ble Madhya Pradesh High Court in case of Imraatlal Vishwakarma case (supra) and the division bench of Hon’ble Gauhati High Court in case of Runu Roy case (supra) have, inexorably, echoed thiss exposition.

10.3 Judicial experience indicaates that, more often than not, an attempt is made by the non-applicant i.e. the State/complainant/victim to differentiiate between the situations wherein firsst/earlier anticipatory bail petition has been dismissed as withdrawn/dismisssed as not pressed vis-à-vis where the earlier petition has been dismissed on merits thereof. In other words, it is canvassed that where the first/eaarlier petition has been dismissed as withdrawn, that the petitioner/appliccant-accused has given up on his right(s) and hence subsequent anticipatory bail petition is not maintainable. The Hon’ble Supreme Court in case of Rani Dudeja case (supra) has held that the second anticipatory bail would be maintainable even in case wherrein earlier one was dismissed as withddrawn. A division bench of this Court, while answering a reference in this regard, has held in case of Manjinder Kaur case (supra) that the second anticipatory bail petition would be maintainable wherein the first one has been dismissed as withdrawn. To the similar effect is the ratio decidendi of a division bench of Madhya Pradesh High Court in the case of Imratlal case (supra). Hence, this seeming conundrum stands set at naught. Accordingly, it is ineluctable that the second/successive petition(s) for graant of anticipatory bail is maintainaable even when the first/earlier one was dismissed as withdrawn.

10.4 The issue that next craaves attention is as to what are the factors/parameters for considerationn of second/successive anticipatory bail petition(s). The concordant view of all the Hon’ble High Courts is that the essential prerequisite for consideraation of second/successive anticipattory bail petition(s) is material/substantiial change in circumstances, unearthhing of substantial new material and othher factors of akin nature. The Hon’’ble Supreme Court in case of G.R. Anaanda Babu case (supra) has enunciaated that specious reason of change in circumstances cannot be relied upon for invoking successive anticipatory bail petition(s). Accordingly, the new grounds pleaded/change in circumsttances ought to be substantial in natuure. 10.5 No rigid or universal criteria can possibly be delineated to conclusively govern the exercise of judicial discretion, in determining, as to what would constitute as the above stated substantial change in circumstances. Factual flexibility, onne additional or different fact, may make a sea of difference between two casees. There is no gainsaying that each case has its own distinct and unique facts and, hence, exercise of such judicial power is best left to the judicial discretion of a Court in accordance with the settled norms of our jurisprudence.

As an epilogue to the aboove rumination, the following principples emerge:

I Second/successive anticipatory bail petition(s) filed under Secttion 438 of Cr.P.C., 1973 is mainntainable in law & hence such petittion ought not to be rejected solely on the ground of maintainability thereeof.

II Such second/successivee anticipatory bail petition(s) is maintainable whether earrlier petition was dismissed as withdrawn/dismissed as not prressed/dismissed for non-prosecution or earlier petition was dismissed on merits.

III For the second/successivee anticipatory bail petition(s) to succeeed, the petitioner/applicant shall be essentially/pertinently required to show substantial change in circumstances and showing of a mere

superficial or ostensible change would not suffice.

IV No exhaustive guidelines can possibly be laid down as to what would constitute substantial chhange in circumstances as every case has its own unique facts/circumstance. Accordingly, this issue is best lefft to the judicial wisdom and disccretion of the Court dealing with such second/successive anticipatory bail petition(s).

V In case a Court chooses to grant second/successive anticipattory bail petition(s), cogent and lucid reasons are pertinently required too be recorded for granting suchh plea despite such a plea beeing second/successive petition(s). In other words, the cause for a Coourt having successfully countenannced/entertained such second/successsive petition(s) ought to be readily and clearly decipherable from the said order passed.

VI Once a plea for anticcipatory bail has been dismissed as withdrawn/dismissed as not prressed/dismissed for non-prosecution or dismissed on merits by the High Court, no second/successsive anticipatory bail petition(s) shaall be entertained by a Sessions Courtt.”

Indubitably, the first petitioon (for grant of anticipatory baail) preferred by the petitioner was dismisseed by a Coordinate Bench of this Court on 16.08.2021. The contention(s) raised on behalf of the petitioner that he haas been falsely implicated into the FIR in question and he is not involved in selling the policies in question to the complainant, were considered at that time and thereafter the said petition was dismissed. Thereafter, in the instant petition i.e. second petition (for grant of anticipatoory bail), the petitioner has reiterated the grounds previously takken (at the timme of rejection of the first petition on 16.08.2021).

There is no substantial changge nay any change in circumstances which maay weight, in favour of entertainning the instant second petition for bail exceept the fact that he has entered into compromise with the complainaant, which has also been categoorically denied by the complainaant. Ergo, the instant petition deserves dismisssal on this score alone. Moreovver, the prolonnged evasion of the petitioner weighs heavily against the exercise of discretion in his favour under the provvisions governing anticipatory bail. Furthermoore, the first petition was dismisssed on 16.08.2021 and the instant petition has been preferred after a gap off more than 04 years. It is evident that the petitioner has evaded the process of law for over 04 years. The conduct of the petitioner in avoiding arrrest for such a prolonged periiod without any reasonable cause must be considered while adjudicating this second peetition. Process of justice is meeant to treat every individual inn a manner which is equitable and fair. However; if the petitioner-accussed chooses to employ irregular and convoluted tactics, including undue delay, strategically aimed at frustrating the laawful proceedings/investigation,, it tantamounnt to an abuse of the process of justice. While liberty and dignnity of an individual must be held high, howwever, no one can be permitted to subvert and cause devolution in the proccess of justice. Protracted absence, eluding thhe process of law and abrupt reppetition of pleas for pre-arrest bail, in absence of convincing reason(s) is cerrtainly not an act/behaviour which calls for sympathy/indulgence of the Coourt. The hiatus of more than 04 years on part of the petitioner (herein) is inexplicable nay contumacious. Thereforee, the conduct of the petitioner when examined in the backdrop of the nature/severity of allegations made against the petitioner, dis-entittles him for grrant of anticipatory bail.

Furthermore, no fresh substaantial change in circumstances has been brouught forward which would indicate that the petitioner is entitled to maintain his second petition for grant of anticipatory bail, except the allegged compromise with the complainant, which has been categorically denied by the compplainant herself. However, the existence and validity of suchh a compromise has not been corroborated by the complainant and thereforee, it cannot be treated as a substantial or matterial change in the circumstancces. Even if a compromise exists, it cannot override the seriousness of the allegationns under Sections 406 and 420 off IPC. All the grounds urged by the petitioner in the present petition have allready been considered & decided and view thereupon has been taken vide judgment dated 16.08.2021. From the entire factual conspectus brought foorward in the present petition, no fresh grouund or circumstance is made out so as to enable the petitioner to file and maintain the second anticipatory bail petition.

In view of the prevenient ratiiocination, it is ordained thus:

(i) The petition in hand is devoid of merits and is hereby dismissed.

(ii) Any observations made and//or submissions noted hereinaboove shall not have any effect on merits of the case and the investigating agenncy as also the trial Court shall proceed furtheer, in accordance with law, without being influenced with this order.

(iii) Pending application(s), if anyy, shall also stand disposed of.