IN THE COURT OF DR.

KOPAL CHAUDHARY, JMIC, REWARI

Prabhat Kumar, S/o Laxmikant Mishra, R/o Brahman Tolla, Muriyaro, P.S.
Angar Ghat, District Samastipur, Bihar.

… Applicant

Versus

State of Haryana … Respondent

FIR No. 05 dated 06.01.2021

U/Ss. 406/420/467/468/471 & 34 IPC

P.S. Sadar Rewari

2nd Bail Application under section 437 Cr.P.C.

1. That the applicant is a totally innocent person and he has been falsely

implicated in the present case with oblique and ulterior motive by the

complainant.

2. That during the course of investigation, the present applicant was arrested

22-02-2020 and he has been continuing in custody since then.

3. That the applicant had earlier approached Hon’ble Sessions Court,

Rewari seeking grant of concession of regular bail to him, however the

said application was ordered to be dismissed by Hon’ble Sessions Court,

Rewari vide order dated 24-06-2020. In view of the trite position of law

and further in view of the position of law laid down by the Hon’ble

Supreme Court of India in the case titled as Manoranjana Sinh @

Gupta Vs. Central Bureau of Investigation, 2017 (1) RCR (Criminal),

1025 an under trial prisoner should not be kept detained for an indefinite

period since the said detention is certainly violates the provisions of

Article 21 of the Constitution of India and further in the wake of the

 catena of Judgments handed down by the Hon’ble Supreme Court and

this Hon’ble Court wherein it has been reiterated time and again that

every day’s enhanced custody is a fresh ground for consideration of bail

plea, the applicant is yet again approaching this Hon’ble Court by way of

preferring the present application, which is the second application before

this Hon’ble Court seeking grant of concession of regular bail to him.

4. That brief facts of the case are that the criminal law was set into motion

through a written application dated 18-04-2019 by complainant

Rajkumar, S/o Gugan Singh, R/o Village Ramgarh, Tehsil and District

Rewari to Sh. Rajesh ASI, PS Sadar alleging therein that the

Complainant’s son Vishal Yadav had been preparing for government job

and the complainant’s friend Shiv informed the Complainant that

physical, medical and written paper of his son Himanshu have been

cleared for the post of clerk in the Army and the merit list would be

coming soon. He also showed the documents to the Complainant and

allegedly informed the Complainant that one Virender, S/o Jaswant

Singh, R/o Village Chowki near Kotkasim, District Alwar, Rajasthan,

who is acquainted with Army Officers, helped him in this and got the

work done on receiving money. The Complainant was convinced and

Shiv arranged a meeting of the Complainant and his son with Virender in

February, 2016 and told the Complainant that the recruitment in Ranchi

ARO was being done at that time and that he could get the Complainant’s

son appointed within three months. He also assured the Complainant that

if the work would not be done, the money would be returned. The

Complainant on the assurance given to him, gave Rs. 2 lakh to Virender

for his own son and Rs. 2 lakh were further given to Virender by another
candidate Naresh, S/o Khajan SIngh who is a friend of the Complainant’s

son. Subsequently, after three days of making payment, Virender

allegedly informed the Complainant to book train tickets for Samastipur,

Bihar and that he would meet the boys at Dehi railway station and would

take them to his “Sir”, allegedly, Prabhat Mishra, the Applicant herein.

When the Complainant’s son reached Samastipur, Virender allegedly

made the Complainant talk to Prabhat Kumar Mishra, the Applicant, who

allegedly assured the Complainant that his son would get recruited in the

Army and that he has got many candidates from Rewari recruited in the

Army. Subsequently, Virender allegedly informed the Complainant that

Prabhat Kumar Mishra sir asked for a sum of Rs. 20,000/- for each of the

boys so that their physical tests could be cleared. He also allegedly

informed the Complainant that his son had a tattoo on his right arm

which needed to be removed and that Naresh’s teeth were defective and

needed correction for clearing the physical tests. When Vishal and

Naresh came to Rewari after 10-12 days, the said tattoo was removed and

Naresh’s teeth were corrected. Subsequently, Virender allegedly sent the

proforma of physical ‘Passed’ certificate of both the candidates which

were filled out with requisite particulars and sent back. It was alleged that

after one month, the Complainant asked Virender as to when the medical

tests would be conducted and he was allegedly informed that the Colonel

of the battalion had gone to Bharatpur, Rajasthan for exercise and on his

return, the same would be done. Subsequently, Virender and his “Sir”,

allegedly the Applicant, called all the candidates along with original

documents at Ranchi railway station for verification and allegedly

informed them that one Santosh Mishra, who is driver of Army vehicles

will meet them there. Thereafter, both Vishal and Naresh reached Ranchi
railway station and allegedly handed over the original documents to

Santosh Kumar Mishra and after submitting the documents, they returned

back when said Santosh Kumar Mishra allegedly assured the

Complainant that his son will get recruited in the Army. Subsequently,

Virender and his alleged “Sir” again called the Complainant’s son for the

purpose of medical test in Ranchi where they stayed for ten days in a

hotel. The Complainant’s son allegedly informed the Complainant that

there were 27 other such candidates whose medical test was to be done

and they were staying in the same hotel and that Virender and his alleged

“Sir” had told them that the medical test would be conducted in the hotel

itself. However, no one came to conduct such test for 20 days. It was

further alleged that when the Complainant enquired from the said “Sir”,

he informed the Complainant that Virender had lied to him with regards

to the medical test and that for the purpose of getting their affidavits

made, he was taking all the candidates to Samastipur along with his

brother Santosh Mishra who is in the Army. When the Complainant’s son

Vishal and his friend Naresh returned to Rewari, they informed the

Complainant that Virender, Santosh Mishra and the Applicant took them

to Samastipur, Bihar where they were allegedly made to sign on blank

affidavit and were also photographed and thereafter they were sent back

home. Subsequently, Virender called them to Ranchi again for the

purpose of medical test and without conducting any medical test, medical

certificates were given to the candidates. The Complainant’s son

allegedly noted down the mobile number of the Applicant from the phone

of Virender and gave it to the Complainant and when the Complainant

enquired from the Applicant, he was allegedly assured by the Applicant

that the process will not take a long time. Subsequently, after many days
when Virender, Santosh Kumar Mishra and the Applicant allegedly

demanded more money from the Complainant again and he objected, the

Complainant was called to Ranchi. The Complainant along with his

friends Anil, Subhash and Balwant went to Ranchi and stayed there for 6

days. It was alleged that on the 7th day, Rajiv Ranjan and Munna Singh

came from Samastipur and assured the Complainant. As per the

prosecution, Rajiv Ranjan, who is also a member of the alleged gang with

Virender, Prabhat Mishra, Munna Singh and Santosh Mishra, told the

Complainant that if he would have brought 11 lakh in cash, the joining

letter would be given in the same time whereupon the Complainant told

him that he does not have cash on which Rajiv Ranjan, Munna Singh and

Prabhat Mishra, the applicant allegedly gave their account numbers and

on their asking a sum of Rs. 9 lakh was deposited in their accounts.

Subsequently, a sum of Rs. 2 lakh was allegedly given to Rajiv Ranjan,

Munna Singh and Prabhat Mishra, the applicant by one Balwant, a friend

of the Complainant by withdrawing the sum from ATM at Ranchi. On

27.11.2016, Prabhat Mishra, the applicant, allegedly informed the

Complainant that the result of his son has been sent through whatsapp

upon receiving which the Complainant was fully convinced. Thereafter

Prabhat Mishra and Virender told the Complainant that his work has been

done and the selected candidates would go for training in the Army and

also informed that a new recruitment drive for 2017 had started in Goa

and if any child of his relatives is to be recruited, the same can be done.

Subsequently, the Complainant gave the numbers of Virender and

Prabhat Mishra, the applicant, to his brother-in-law Harvinder @ Pinku.

The other friends of the Complainant on seeing the result of the

Complainant’s son, were also convinced with Virender and Prabhat

Mishra and they also contacted both of them for recruitment of their

children. It is then stated that after waiting for 6 months after the result of

November 2016,Virender and Prabhat Mishra, the Applicant, allegedly

kept on postponing the work and told the Complainant that joining letter

will be received later on and the original documents are with them and

they are being verified. After a few days, the candidates received a slip

on whatsapp instructing them to reach ARO Ground, Ranchi on between

25.12.2017 and 28.12.2017. Upon being asked by Santosh Mishra to

submit original documents and affidavit of local address in order to

receive the joining letter, the Complainant’s brother-in-law Harvinder @

Pinku reached Ranchi to allegedly submit all original documents of his

son to Rajiv Ranjan and Santosh Mishra. Subsequently, on 1 March, the

Complainant again contacted Rajiv Ranjan and Prabhat Mishra, the

Applicant who allegedly asked the Complainant to send the Police

Character Certificate of all the candidates to Ranchi. That the very next

day, on 02.03.2019, the Complainant’s friend Anil, S/o Ramnath, R/o

Village Ramgarh, Rewari reached Ranchi and talked with Prabhat

Mishra, the Applicant over phone who allegedly lied to Anil that Santosh

Mishra would come and receive the documents but no one came for 1-2

days. After 2 days, one Sanjay Pandey, who came to receive the

documents in Ranchi, informed Anil and the Complainant that Prabhat

Mishra, the Applicant, and his brother Santosh Mishra prepared false

documents in conspiracy and took money on the pretext of procuring job

in the Army and also informed that Prabhat Mishra had deposited the

money given by everyone in the account of his wife and children. After

many days, when none of the candidates could be recruited in the Army,

the Complainant confronted the accused and warned them of legal action
 but the accused allegedly threatened him saying that they had both Police

and goons in their pockets and that they are friends with Naxalites and

that the Complainant cannot harm them and that if the Complainant tried

to complain against them they would fight the case with the

Complainant’s money and would shoot him with their guns if the

occasion so warranted. Upon receiving such threats, the Complainant

made the present complaint. On the aforesaid written complaint of the

complainant, formal FIR was recorded and investigation was started.

5. That during investigation, only Rs. 10,000/- could be recovered from

Virender, the source of which is yet to be proved. Similarly, only Rs.

20,000/- have been recovered from the Applicant the source of which has

not yet been proved by the prosecution.

6. That the complaint itself is nothing but a bundle of lies cleverly and

intentionally vague about facts and suffering from several loopholes such

as:

(i) Even though the Complainant claims to have repeatedly talked with

the Applicant/Accused over phone, the phone number of the

Applicant/Accused has not been mentioned anywhere in the complaint

or any of witness statements recorded by the Prosecution.

(ii) It is quite strange that the Complainant never met the

Applicant/Accused, in person, even once during the course of 4 years

during which the alleged fraud has been said to have taken place. The

Complainant has deliberately mentioned irrelevant details and events

in the Complaint to make it verbose, vague and ambiguous without

delving into relevant facts and details.

(iii) The complaint is absolutely silent on the events that transpired

during the year 2018. No justification has been offered for the delay in

filing the complaint even though by the beginning of 2018, an year

had passed from the date of the alleged bogus result of the

Complainant’s son who had received no joining date or training.

(iv) The Complainant claims to have procured the initial amount of Rs. 2

lakh given to accused Virender, from the Complainant’s son-in-law

who has been arraigned as a witness to the transaction by the

Prosecution. It is quite peculiar that despite working for Delhi Police,

the son-in-law of the Complainant was oblivious of the illegal nature

of a transaction involving payment of money for availing a job and

was easily deceived and gladly parted with his money to secure a job

for his brother-in-law.

(v) The complaint states that Rs. 11 lakh were demanded from the

Complainant by the Applicant/Accused at some point during the year

2016. The complaint further states that an amount of Rs. 9 lakh was

deposited to the bank accounts of the Accused but cleverly conceals

the date(s) of such transaction(s), the receipt(s) of such transaction(s)

or even the alleged account number(s) of the accused to which the

alleged transaction(s) was/were made. The complaint further goes on

to allege that the remaining Rs. 2 lakh were given by one Balwant

who is said to be a friend of the Complainant who personally took a

flight to Tanchi and withdrew the said amount from an ATM. It is

pertinent to mention that vide circular bearing no. RBI/2016-17/213

DCM (Plg) No.2559/10.27.00/2016-17 dated January 16, 2017, the

Reserve Bank of India had increased daily transaction limits of ATMs

from Rs. 4,500/- to Rs. 10,000/- at the beginning of the year 2017, So,
 withdrawing a sum of Rs. 2 lakh from an ATM would have taken said

Balwant at least 45 days, a fact that has not been mentioned anywhere

in the Complaint. A copy of the RBI circular has been annexed to the

Application for the kind perusal of this Hon’ble Court.

7. That the charges against the Applicant/Accused have been erroneously

framed inasmuch as they suffer from the following infirmities:

(i) It has been held by Hon’ble Punjab and Haryana High Court in Jalpa

Parshad Aggarwal vs. State of Haryana and Ors. 1987 (2) RCR 427:

“3. At the outset it may be mentioned that this Court held in Iqbal

Singh Randhawa v. Doctor Satpaul Goyal, 1977 C.L.R (Pb. &

Har.) 134, that an offence under Section 406, Indian Penal Code,

is, an anti-thesis of offence under Section 420, Indian Penal Code.

In a case of criminal misappropriation the property is voluntarily

kept in the custody of an accused whereas in a case of cheating,

the accused, by adopting deceitful means, induces the complainant

to part with the property. Thus, an accused cannot be tried for

these two offences simultaneously. Either he has committed an

offence under Section 406, Indian Penal Code or under Section

420, Indian Penal Code.”

Thus, it is clear that the prosecution has committed a grave error has

been committed by the prosecution at charging the Applicant/Accused

under both section 406 as well as section 420 of the Indian Penal Code

and that the charge so erroneously applied against the

Applicant/Accused must be dropped in the interests of justice.

(ii) From a perusal of the allegations made by the Complainant in his

complaint as well as his statements, the necessary ingredients to

constitute an offence under section 467 of the Indian Penal Code. The

contents of section 467 of the Indian Penal Code are being reproduced

for the kind perusal of this Hon’ble Court as follows:

“467. Forgery of valuable security, will, etc.—Whoever forges a

document which purports to be a valuable security or a will, or an

authority to adopt a son, or which purports to give authority to

any person to make or transfer any valuable security, or to receive

the principal, interest or dividends thereon, or to receive or

deliver any money, movable property, or valuable security, or any

document purporting to be an acquittance or receipt

acknowledging the payment of money, or an acquittance or receipt

for the delivery of any movable property or valuable security,

shall be punished with imprisonment for life, or with imprisonment

of either description for a term which may extend to ten years, and

shall also be liable to fine.”

Further, section 30 of the Indian Penal Code defines valuable security

the contents of which are being reproduced for the kind perusal of this

Hon’ble Court as follows:

“30. “Valuable security”.—The words “valuable security” denote

a document which is, or purports to be, a document whereby any

legal right is created, extended, transferred, restricted, extin-

guished or released, or where by any person acknowledges that he

lies under legal liability, or has not a certain legal right.”

The sections on being read in conjunction, clearly establish that none

of the documents allegedly recovered from the Applicant/Accused

purport to any valuable security or will or any other types of

documents mentioned under section 467 of the Indian Penal Code. It

 is the case of prosecution that the forged Medical Fitness Certificates

were recovered at the instance of the Applicant/Accused. However, by

no stretch of reason or imagination could it be established that a

medical fitness certificate creates a right or liability for any person or

constitutes a transferable valuable security, for that matter. Again, the

prosecution has committed a grave error at charging the

Applicant/Accused with an offence which lacks the ingredients

mentioned under section 467 of the Indian Penal Code so as to

establish a prima facie case against the Applicant/Accused.

(iii) This Hon’ble Court did not find a prima facie case against the

Applicant/Accused under section 468 of the Indian Penal Code and

did not frame a charge under section 468 of IPC amongst other

charges vide order dated 04.10.2021.

(iv) The charge under section 471 of the Indian Penal Code does not apply

to the case of Applicant/Accused since he is not the user of the

documents alleged to have been recovered through the disclosure of

the Applicant/Accused. The contents of section 471 of the Indian

Penal Code are being reproduced for the kind perusal of this Hon’ble

Court as follows:

“471. Using as genuine a forged document or electronic record.—

Whoever fraudulently or dishonestly uses as genuine any

document or electronic record which he knows or has reason to

believe to be a forged document or electronic record, shall be

punished in the same manner as if he had forged such document

or electronic record.”

As mentioned above, it is the case of the prosecution that the forged

documents that have been allegedly recovered through the disclosure

 of the Applicant/Accused are Medical Fitness Certificates pertaining

to the Complainant’s son, his friends and several other candidates who

were desirous of using the said Medical Fitness Certificates to secure

jobs in the Army through illegal means, bypassing the due selection

process. As can be seen from a basic perusal of the complaint itself,

the Complainant allegedly gave Rs. 2 lakh to Virender after receiving

a money-back guarantee from him which makes it apparent that the

Complainant and the prospective candidates who have testified

against the Applicant/Accused considered the job in the Army as a

commodity that can be bought with money and were desirous of using

the said documents to secure jobs in the Army through illegal means.

Since it is an admitted fact in the complaint and their testimonies, the

Complainant, his son and the prosecution witnesses are ironically the

people who are guilty of the offence under section 471 of the Indian

Penal Code.

8. That the recovery of Rs. 20,000/- allegedly effected from the house of the

Applicant/Accused does not connect him with the commission of the

crime as in the written complaint of the complainant or in the FIR, the

chain of transactions vis-a-vis deposits and withdrawals from the account

of the Applicant/Accused have not even been mentioned let alone

proved.

9. That in Dhananjoy Chatterjee @ Dhana v. State of West Bengal

1994(1) RCR (Criminal) 429: 1994(2) SCC 220, it is held that entire

statement made by an accused person before the police is inadmissible in

evidence being hit by Sections 25 and 26 of the Evidence Act but that
 part of his statement which led to the discovery of the articles is clearly

admissible U/S. 27 of the Act. It is also held that the Court must

disregard the inadmissible part of the statement and take note only of that

part of his statement which distinctly relates to the discovery of the

articles pursuant to the disclosure statement made by the accused. It is

further held that the discovery of the fact in this connection includes the

discovery of an object found, the place from which it is produced and the

knowledge of the accused as to its existence.

Hence the alleged disclosure statements of Accused/Applicant do not

advance the case of the prosecution to connect him with the commission

of the crime.

10. That the investigation in the case has been completed qua the applicant

and final report has already been filed and the involvement of the

applicant shall be a moot point of adjudication during the course of the

trial, which is likely to take sufficient long time.

11. That leniency must be shown towards the Applicant/Accused in wake of

the deadliest variant Omicron of the COVID-19 virus and the possibility

of a third wave of COID-19 in India. It is submitted that vide order dated

07-05-2021 passed by the Hon’ble Supreme Court of India in Suo Moto

Writ Petition (C) No. 1 of 2021 to contain the spread of Covid-19 virus in

prisons, observed that on 11-03-2020, the World Health Organisation

declared Covid-19 as a pandemic. On 16-03-2020, 107 persons were

tested positive for Covid-19 in our country. Anticipating the spread of

Covid-19 virus in overcrowded prisons, notices were issued to all the

Chief Secretaries, Administrators, Home Secretaries, Director Generals

of Prisons and Departments of Social Welfare of all the States and Union

Territories seeking their response regarding immediate measures to be

adopted for the welfare of inmates in prisons and juveniles lodged in

remand homes. Hon’ble Apex Court in order to contain the spread of

contagious Covid-19 deadly virus in the prisons issued following

directions:

“As a first measure, this Court, being the sentinel on the qui

vive of the fundamental rights, needs to strictly control and limit the

authorities from arresting accused in contravention of guidelines laid

down by this Court in Arnesh Kumar v. State of Bihar (Supra) during

pandemic.

Second, the rapid proliferation of the virus amongst the inmates

of congested prisons is a matter of serious concern. The High-powered

Committees constituted by the State Government/Union Territories shall

consider release of prisoners by adopting the guideline (such as inter

alia, SOP laid down by NALSA) followed by them last year, at the

earliest. Such of those States which have not constituted High-Powered

Committees last year are directed to do so immediately. Commissioner of

Police Delhi shall also be a member of the High-Powered committee,

Delhi.

Third, due to the immediate concern of the raging pandemic,

this court has to address the issue of de-congestion. We find merit in the

submission of Mr. Gonsalves, Learned Senior Counsel appearing on

behalf of the applicant, that the High-Powered Committee, in addition to

considering fresh release, should forthwith release all the inmates who

had been released earlier pursuant to our order dated 23-03-2020, by

imposing appropriate conditions. Such an exercise is mandated in order

to save valuable time.

Fourth, further we direct that, those inmates who were granted

parole, pursuant to our earlier orders, should be again granted a parole

for a period of 90 days in order to tide over the pandemic.

Fifth, the fight against the pandemic is greatly benefitted by

transparent administration. In this regard, our attention was drawn to

example of Delhi, wherein the prison occupancy is updated in websites.

Such measures are required to be considered by other States and should

be adopted as good practice. Moreover, all the decisions of High-

Powered Committees need to be published on respective State Legal

Service Authorities/State Governments/High Courts websites in order to

enable effective dissemination of information.

Overcrowding of prisons is a phenomenon, plaguing several

countries including India. Some prisoners might not be willing to be

released in view of their social background and the fear of becoming

victims of the deadly virus. In such extraordinary cases, the authorities

are directed to be considerate to the concerns of the inmates. The

authorities are directed to ensure that proper medical facilities are

provided to all prisoners who are imprisoned. The spread of Covid-19

virus should be controlled in the prisons by regular testing being done

not only of the prisoners but also the jail staff and immediate treatment

should be made available to the inmates and the staff. It is necessary to

maintain levels of daily hygiene and sanitation required to be improved.

Suitable precautions shall be taken to prevent the transmission of the

deadly virus amongst the inmates of prisons. Appropriate steps shall be

 taken for transportation of the released inmates of the prisons, if

necessary, in view of the curfews and lockdown in some States.”

12. That in view of the observation of the Hon’ble Apex Court, to keep the

Accused/Applicant in jail would unnecessarily expose him to the risk of

contracting contagious and deadly COVID-19 disease.

13. That the complaint and the testimonies by Complainant and the

prosecution witnesses related to him, suffer from several loopholes and

logical fallacies as have been mentioned in para 6 above and further, the

prosecution has attempted to commit a grave miscarriage of justice by

charging the Applicant/Accused of offences without justifying all the

essential ingredients of the said offences as has been mentioned in para 7

above.

14. That the investigation is completed as a charge-sheet is filed. The trial is

likely to take sufficiently long time. Material witnesses are either Police

Officials or related parties to the complainant. Therefore there is no

possibility of tampering with the prosecution evidence in case the

Accused/Applicant is released on bail.

15. That the FIR lodged by the First Informant is an afterthought and has

been filed after a significant lapse of time from the transactions that have

been alleged and are yet to be proved in evidence.

16. That the Applicant/ Accused is ready to abide by any terms and

conditions to be imposed by this Hon’ble Court.

17. That the Applicant/Accused is a permanent resident of the captioned

address. As such, the Applicant/Accused has deep roots in society and,

hence, there is no possibility that he would abuse the process of bail and

flee from justice.

18. That the antecedents of the Applicant/Accused are good and he is not

involved in similar offence in any other case.

PRAYER:
In the light of the above cited facts and totally of the

circumstances, it is most respectfully prayed that the applicant may

kindly be granted the concession of regular bail and/or any other or

further order which this Hon’ble Court may deem fit and proper in the

attending circumstances of the case may kindly be passed in the interest

of justice.

Place: Rewari
Date: Applicant
Prabhat Kumar, S/o Laxmikant Mishra, R/o
Brahman Tolla, Muriyaro, P.S. Angar Ghat,
District Samastipur, Bihar

Through:
Vishal Yadav, Advocate