Final Order 3

Order Details: COPY OF ORDER
Pdf Text: FIR No.RC2312024S0007
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IN THE COURT OF SH. AMITABH RAWAT
SPECIAL JUDGE (P.C ACT) (CBI-14)
RADC, NEW DELHI
1. CBI vs. Shivam Bhardwaj
(Bail Appl. No. 173/2024)
2. CBI vs. Rahul Mandal
(Bail Appl. No. 174/2024)
3. CBI vs. Tarneet Singh
(Bail Appl. No. 175/2024)
4. CBI vs. Mohit Kumar
(Bail Appl. No. 176/2024)
5. CBI vs. Vijit Dhingra
(Bail Appl. No. 180/2024)
6. CBI vs. Shubham Jain
(Bail Appl. No. 181/2024)
7. CBI vs. Paras Arora
(Bail Appl. No. 182/2024)
8. CBI vs. Dinesh Gohil
(Bail Appl. No. 183/2024)
9. CBI vs. Ambuj Mathur
(Bail Appl. No. 184/2024)
10. CBI vs. Tushar Arora
(Bail Appl. No. 185/2024)
11. CBI vs. Neha
(Bail Appl. No. 836/2024)
12. CBI vs. Gurjeet Singh
(Bail Appl. No. 837/2024)
FIR No. RC 2312024S0007
U/S. 120B IPC read with 420/467/468/471 IPC &
Section 66D IT Act, 2000
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Date : 13.09.2024
C O M M O N O R D E R
1. Vide this common order, I shall dispose off the
applications filed by 12 applicants/accused persons namely
Shivam Bhardwaj, Rahul Mandal, Tarneet Singh, Mohit Kumar,
Vijit Dhingra, Shubham Jain, Paras Arora, Dinesh Gohil, Ambuj
Mathur, Tushar Arora, Neha and Gurjeet Singh, for grant of
regular bail.
2. Arguments were heard on behalf of all
applicants/accused and prosecution/CBI. I have perused the
record.
3. 3.1 Twelve separate bail applications were moved by
twelve different accused persons and CBI filed twelve separate
replies for each accused person.
3.2 Common arguments were addressed by Counsels.
Reply filed by the CBI is essentially the same for all the
applicants. Hence, the bail applications are being decided
through a common order.
4. Ld. Counsel for applicants/accused persons have
centered their arguments on the following points :-
(a) Accused persons were not produced before the
Magistrate within 24 hours of arrest. It was contended that
accused persons were arrested on 24.07.2024 when a raid was
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conducted at the premises at M/s. Innonet Technology Pvt. Ltd.
At Tower-B, Building No.10, 1st Floor, DLF Cyber City, Phase-
II, Gurgaon at about 11.30 PM. The accused persons were
detained and not allowed to leave. Search of the premises was
initiated at around 11:30 PM on 24.07.2024 and accused persons
present in the premises were put under illegal restraint from the
start of the said proceedings as admittedly none of the employees
were allowed to leave the said premises till the conclusion of the
search proceedings. The search of the premises at 11:45 PM
(app) on 24.07.2024 was not disputed by the CBI and the fact
that all the accused persons kept in custody/restrained from
moving out till 5 PM on 26.07.2024 is also admitted by CBI till
their production before the concerned Duty Magistrate or in the
remand application.
Search proceedings comes within the definition of
"Investigation" as mentioned in Sec 2 (1) of the BNSS. Section
187 (1) BNSS uses the word investigation and provides that in
case the investigation cannot be completed within 24 hours, then
the accused has to be produced before the concerned Magistrate
within 24 hours, which is admittedly not the case here.
Not only were the accused persons not produced
before the Magistrate within 24 hours of their apprehension and
arrest/ detention, but also arrest memos were prepared on
25.07.2024 and they were produced before the Magistrate on
26.07.2024. Thus, there has been violation of the provisions of
arrest, remand and custody qua these accused persons.
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(b) Accused persons were not provided with grounds
of arrest in writing, which violated the dictate of the orders of the
Hon'ble Supreme Court of India. This ground, by itself, is
sufficient for grant of bail in terms of authoritative
pronouncement of Hon'ble Supreme Court of India in
Pankaj
Bansal vs. Union of India, 2023 INSC 866 &
Prabir Purkayastha
vs. State, 2024 INSC 414.
The grounds of arrest are very personal and specific
to each accused person, it is impossible for all 43 accused
persons to share the same grounds of arrest. If the prosecution
asserts that the grounds of arrest were same for everyone, then
the illegality is evident from the said fact itself as grounds of
arrest cannot be same for everyone. Moreover, some accused
persons were sent to JC and some to PC, though grounds of
arrest were same for all as per prosecution, which further
demonstrates the illegality of the argument of CBI.
Also, the concerned Magistrate has erred in
accepting the row no. 6 of the arrest memo stating whether or not
the grounds of arrest have been explained to the accused in
appropriate manner as per law. It is very odd that 43 accused
persons were arrested and row no. 6 of arrest memo only
indicates FIR and its sections. This, by no stretch of imagination
be considered as grounds of arrest. It was argued that Hon'ble
Supreme Court in Prabir Purkhayastha vs. State (NCT of Delhi),
2024 SCC OnLine SC 934, held as follows:
"It may be reiterated at the cost of
repetition that there is a significant
different in the phrase 'reasons for arrest'
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and 'grounds of arrest. The 'reasons for
arrest, as indicated in the arrest 'ground
of arrest as indicated in the arrest memo
are purely formal parameters, viz., to
prevent the accused person from
committing any further offence, for
proper investigation of the offence; to
prevent the accused person from causing
the evidence of the offence to disappear
or tempering with such evidence in any
manner, to prevent the arrested person
for making inducement, threat or
promise to any person acquainted with
the facts to the case so as to dissuade
him from disclosing such facts of the
Court or to the Investigating office.
These reasons would commonly apply to
any person arrested on charge of a crime
whereas the 'ground of arrest' would be
required to contain all such details in
hand of the Investigating Officer which
necessitated the arrest of the accused.
Simultaneously, the grounds of arrest
informed in writing must convey to the
arrested accused all basic facts on which
he was being arrested so as to provide
him an opportunity of defending himself
against custodial remand and to seek
bail. Thus, the 'grounds of arrest' would
invariably be personal to the accused and
cannot be equated with the 'reasons of
arrest which are general in nature.......”
(c) Remand applications and FIR were supplied to
the accused only after completion of arguments by defence side
and prosecution during grant of remand proceedings. Copies of
these documents were provided to the Counsels at after 7 pm on
26.07.2024 through Whatsapp and no physical copy was
provided. A bare perusal of the 1st bail application filed on behalf
of the applicant shows that no argument on the merits of the case
were raised by them as they admittedly were not provided with
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the copy of the FIR, the remand application, and the grounds of
arrest.
(d) When the accused persons were produced before
the Ld. Magistrate on 26.07.2024, legality of arrest and detention
was challenged by the counsels but remand was still given
without deciding the issue of illegality of arrest and detention. It
was argued that a bare perusal of Section 187 BNSS shows that
before considering any application of remand, it is first and
foremost incumbent upon the concerned Magistrate to satisfy
himself/herself that the arrested person has been produced before
him before the expiry of 24 hours as mandated by the said
provision. However, in the present case, the concerned
magistrate blatantly abstained from examining the said fact and
while acting in a perverse manner have sent the applicant to
police custody.
The Hon'ble Supreme Court in Pankaj Bansal us
Union of India, 2023 SCC OnLine SC 1244 has held that it is the
duty of the court to satisfy itself about the validity and lawfulness
of the arrest prior to remanding the arrested person.
The order by the Ld. ACMM dated 26.07.2024
granting police/judicial custody to accused persons without
deciding the issue of illegality of arrest in terms of the mandate
of the judgment of Hon'ble High Court and Hon'ble Supreme
Court of India was completely wrong.
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It was argued that the arrest of the applicant is
illegal, arbitrary, perverse and violative of the Section 187(1)
BNSS, Section 47 BNSS and Article 22 (1) & (2) of the
Constitution of India and mandate of law as prescribed by the
Hon’ble Supreme Court in a catena of judgments and the
fundamental rights enshrined in the Constitution of India.
(e) It was also argued that investigation qua accused
persons is over and all alleged digital devices have already been
seized. Moreover, even as per the prosecution, they are not the
owners of this premises where the raid was conducted or the
alleged Call Center. Accused persons are in custody since
24.07.2024 and police remand of accused persons, wherever
required, has already been taken.
(f) It was also argued that Section 467 IPC is not
made out and it has been incorporated just to defeat the
directions of Hon'ble Supreme Court of India as all other
Sections carry a maximum imprisonment upto seven years. It
was argued that CBI in other matters of similar circumstances
have registered FIRs without incorporating Section 467 IPC. Ld.
Counsel had filed copy of bail orders passed by different courts
in Delhi in similar cases.
(g) It was also argued that accused persons have no
criminal antecedents except one accused namely Dinesh Gohil
who has pending case under Section 138 NI Act and another case
of cheating which has already been compromised. They have
roots in society and will not abscond or flee from justice or
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influence the investigation in any way. They have been in
custody since 24.07.2024. They have been engaged recently in
the said company. They are all young and are willing to abide by
any conditions imposed by the Court.
(h) It was stated that there is no likelihood of the
applicants/accused persons tampering with evidence or
influencing the witnesses and they will be present before the Ld.
Trial Court and attend the trial diligently.(I)Bail applications of
09 co-accused persons have been allowed on same grounds and
applicants be granted bail as principle of partity.
5. It was thus prayed that regular bail may be granted
to applicants/accused persons. All the Ld. Counsels relied upon
the following judgments :
i) Arnesh Kumar vs. State of Bihar & Anr. (2014) 8
SCC 273;
ii) CBI vs. Anupam J. Kulkarni, (1992) 3 SCC 141;
iii) Md. Ibrahim & Ors, vs. State of Bihar & Anr.
(2009) 8 SCC 751;
iv) Sheila Sebastian vs. R.Jawaharaj (2018)7SCC
581;
v) N. Nirupa Latha vs. State of A.P., 2024 SCC
OnLine AP 2593;
vi) Pushpendra Singh vs. Director of Enforcement,
MCRC No.19929 of 2024, Hon'ble Madhya
Pradesh High Court;
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vii) Ashak Hussain Allah Detha vs. Assistant
Collector of Customs (P) Bombay, 1990 SCC
OnLine Bom 3;
viii) Pranav Gupta vs. Union of India, 2023 SCC
OnLine P & H 3598;
ix) Manish Sharma vs. State, Bail Appl. 2751 of
2019, Hon'ble Delhi High Court;
x) Sharat Babu Digumarti vs. Govt. (NCT of Delhi),
2017 2 SCC 18;
xi) Gagan Harsh Sharma vs. State of Maharashtra,
2018 SCC OnLine Bom 17705;
xii) Tarun Sadana vs. State, 2019 SCC OnLine Del
11476;
xiii) Sumit Bose & Anr. vs. State of Assam, Bail Appl.
4353 of 2023, Hon'ble Gauhati High Court.
xiv) Rajan Sidania & Ors. vs. State of Assam, Bail
Appl. 4271 of 2023 Hon'ble Gauhati High Court.
xv) Kapil Taneja vs. State (Govt. NCT of Delhi), Bail
Appl. 3577 of 2022, Hon'ble Delhi High Court.
xvi) Prashant Sharma & Ors. vs. State of Assam, Bail
Appl. 4300 of 2023, Hon'ble Gauhati High Court.
xvii) Puneet Sharma & Ors. vs. State of Assam, Bail
Appl. 4012 of 2023, Hon'ble Gauhati High Court.
xviii) Pankaj Bansal vs. Union of India, 2023 INSC
866;
xix) Prabir Purkayastha vs. State, 2024 INSC 414.
xx) Manula M Kanchwala vs. State of Maharashtra
& Ors. MANU/MH/5167/2024
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6. 6.1 Reply to the bail application was filed by CBI
stating that the present case No. RC-231202450007 has been
registered on 22/07/2024 U/s 120-B r/w 420, 467, 468 & 471 of
IPC and Section 66D of IT Act, 2000 against unknown accused
persons, on the basis of source information.
6.2 The allegations in brief are that during the period
from November, 2022 to April, 2024, the unknown accused
persons in criminal conspiracy with each other operated illegal
call centers from New Delhi and adjoining areas associated with
IP addresses 14.142.187.93, 103.129.108.6, 14.142.187.98,
14.194.36.250 and 14.195.41.130 with an intent to target US
nationals and subject them to tech fraud.
6.3 It is further alleged that during the aforesaid period,
the accused persons operated under pseudonymous identities
'Ellie Thomas", 'Max Rogers', 'Jason Watson' and 'Rick Taylor',
etc. and targeted the US citizens by using virtual TextNow
contact numbers 425-243-8444, 425-332-7766, 425-459-6882,
425- 800-5554, 315-809-3383, 600-800-2963, 315-704-4202,
315-666-1673, 315- 667-2657 and 315-969-0135 associated with
IP addresses14.97.236.22, 180.151.233.18, 157.37.132.193,
112.79.221.233,106.195.54.191,106.195.54.185, 106.195.54.166,
106.195.54.172, 49.36.186.77, 110.225.92.68, 106.195.51.171,
45.251.51.242,106.195.51.160,106.195.51.187& 106.195.51.178
assigned by different Indian Service Providers and subjected the
US nationals to tech fraud. During the aforesaid period, the
accused persons targeted the US nationals by delivering pop-up
alert messages on their computer screens as if the same were sent
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by Microsoft. When the US victims contacted on the numbers
displayed in the said pop-up messages, they were connected to
the accused persons. Thereafter, the accused persons
impersonating as Microsoft tech support falsely informed the US
nationals through virtual contact numbers via Voice Over
Internet Protocol (VoIP) that their computers had been hacked or
their identities had been stolen/ misused.
6.4 In furtherance of the said criminal conspiracy, the
accused persons induced the US victims to download remote
utilities software to have remote access to their computer systems
under the guise of repairing their computer systems. The accused
persons further induced the US victims to access their bank
accounts under the cover of verifying if any fraud had been
committed in their bank accounts by hacking their computer
systems. In this way, the accused persons got unauthorized
remote access to the bank accounts of the US victims.
6.5 The accused persons further induced the US victims to
wire transfer the funds from their bank accounts to the Federal
Reserve to protect their funds from hackers. In this way, the
accused persons targeted the US nationals and subjected them to
tech fraud to the tune of US$ 15 million during the aforesaid
period. One of the victims, Ms. Michele Finch, resident of Santa
Cruz, California, USA, observed a pop-up message on her
computer screen on 24.11.2022. When she contacted on the
number displayed in the said pop-up message, one of the accused
persons responded the call impersonating as Microsoft Tech
Support and falsely informed her that her identity had been
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hacked and instructed her to download remote utilities software
to fix her computer. Accordingly, she downloaded the remote
utilities software and on being asked by the accused persons to
check whether there were unusual transactions in her bank
accounts, she logged into her bank accounts maintained with
Wells Fargo and Alliance Bernstein, thereby the accused persons
gained unauthorized access to her bank accounts through remote
utilities software. The accused persons further induced Ms.
Michele Finch falsely informing her that her bank accounts were
at risks from the hackers and that she needed to wire transfer
funds from her bank accounts to Federal Reserve to protect her
funds from hackers. On being instructed by the accused persons,
she opened two different accounts at JP Morgan Chase Bank and
Citi Bank and transferred funds to the tune of US$ 6.5 Million
from her aforesaid bank accounts to her bank accounts at JP
Morgan Chase Bank and Citi Bank during the aforesaid period.
The accused persons who had remote access to the aforesaid
bank accounts of Ms. Michele Finch, fraudulently transferred the
amount of US$ 6.5 Million from her said accounts to 16 different
bank accounts maintained with Hang Seng Bank Ltd. and Hong
Kong & Shanghai Banking Corporation (HSBC) in Hong Kong
on different dates during the period from 22.12.2022 to
04.04.2023, thus defrauding Ms. Michele Finch to the tune of
US$ 6.5 Million. Similarly, the accused persons targeted the
other US nationals during the said period and subjected them to
tech fraud and thus, defrauded them to the tune of US$ 8.5
Million. It is also revealed that the accused persons were in
contact with each other on Signal messaging app using 46 mobile
numbers subscribed by different Indian service providers.
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6.6 The IP addresses 14.142.187.93, 14.97.236.22,
14.194.36.250, 14.195.41.130 and 14.142.187.98 were found to
be subscribed to the following:-
a) M/s Averda Waste Management India Pvt. Ltd.,
232-B, Near SBI, Okhla Industrial Estate, Phase 3, Okhla, New
Delhi-110020;
b) M/s CSPRO Technology OPC Private Limited at
T-85, FF, T Block Back Gali, Uttam Nagar, Near Jagran Chowk,
New Delhi-110059;
(c) M/s CSPRO Technology OPC Private Limited,
248, KS Corporate Tower. 10th Floor, Plot No.24B, Film City,
Sector 16A, Noida-201301;
(d) M/s Innonet Technology (OPC) Pvt. Ltd., at
Tower B, Building No.10, 1st Floor, DLF Cyber City, Phase-2,
Gurgaon-122002;
(e) M/s Wework India Management Pvt. Ltd., Sector
16-B, Tower A, Burger Towers, Gautam Buddh Nagar, Noida,
UP.
6.7 After obtaining search warrants from the Court,
premises of M/s Innonet Technology OPC Pvt. Ltd. and other
premises were searched by the investigating agency on
24/07/2024. During search at the premises of M/s Innonet
Technology OPC Pvt. Ltd., the investigating agency busted an
illegal call centre being run by the accused persons in the said
premises and intercepted the following 43 members of the said
illegal call centre, red handed while targeting the US nationals
online.
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6.8 During the course of search at the premises of M/s
Innonet Technology OPC Pvt. Ltd., digital devices viz. 131
computer hard disks, 06 laptops &110 mobile phones containing
incriminating digital evidence and incriminating documents were
recovered, which prima facie, disclosed the active involvement
of the accused persons in the commission of alleged crime. The
incriminating documents containing details of the defrauded
amounts received by the aforesaid persons, were also recovered
from the said premises during searches.
6.9 During the course of searches on 24/07/2024, the
accused persons were intercepted by the investigating agency red
handed while targeting the victims online and the details of the
same were captured by the investigating agency at the spot itself
with help of technical experts and the same were seized during
investigation. The digital evidence contained in the computer
hard disks, laptops, mobile phones etc. recovered during the
searches disclosed the modus operandi used by the accused
persons to target the victims, inducement at the hand of the
accused persons to victims to install remote utility software in
their computer systems, access the credentials of their bank
accounts through the said remote access software and thereafter
fraudulently transferring money from the bank accounts of the
victims to the beneficiary bank accounts of the accused persons.
The documents recovered from the said premises during searches
also contained the details of the defrauded amounts obtained by
the accused persons from the victims during the relevant period.
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6.10 The evidence recovered from the premises of M/s
Innonet Technology OPC Pvt. Ltd. showed that the accused
persons actively participated in the commission of the alleged
crime and in the given facts and circumstances and the material
recovered during the searches, it was very necessary to prevent
them from committing further crime. Hence, the aforesaid
accused persons were arrested on 25/07/2024 after informing
them the grounds of their arrest and informing their family
members/ relatives about their arrest and following the guidelines
issued by the Hon'ble Supreme Court of India.
6.11 The accused persons were produced before the Ld.
Duty Magistrate, Additional Chief Judicial Magistrate-01, Rouse
Avenue Court Complex, New Delhi on 26/07/2024 and after
perusing the material available on record, the Ld. Court was
pleased to remand the accused persons to Judicial Custody.
6.12 Investigation has revealed that the accused persons
were running an illegal call centre in the name and style of M/s
CSPRO Technology OPC Pvt. Ltd., KS Corporate Towers, Film
City, Sector 16A, Noida and were duping the US Nationals under
the guise of tech support. However, in order to conceal their
illegal activities, they closed the said illegal call centre in
October, 2023 and started their illegal operations in the name and
style of Innonet Technology OPC Pvt. Ltd. at Building No.10B,
First Floor, DLF Cyber City, Sector 24, Gurgaon in February,
2024, targeting the US nationals and defrauding them.
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7. 7.1 Ld. Prosecutor had argued that applicants were
arrested on 25.07.2024 though they were apprehended on
24.07.2024 at about 11.30 PM from the premises when the same
was raided pursuant to a search warrant issued by the Court in
the present case registered on 22.07.2024. The arrest memo was
prepared on 25.07.2024 and applicants were duly produced
within 24 hours of the arrest memo before the concerned Ld.
Duty Magistrate. He had argued that 24 hours have to be
reckoned from the time mentioned in the arrest memo and not the
time when they were apprehended at the Call Center. He has
relied upon
Gautam Thapar vs. Directorate of Enforcement,
2021:DHC:3120 to buttress his point. He also referred to the
proceedings in
Ram Kotumal Issrani vs. Directorate of
Enforcement & Anr. (SLP No. 6181 of 2024) pending before the
Hon'ble Supreme Court of India to contend that this issue of
arrest whether to be reckoned from the moment liberty is
curtailed to formal time of arrest as shown by arrest memo is
pending consideration before the larger Bench of the Hon'ble
Supreme Court of India.
7.2 Ld. Prosecutor further argued that there has been
recovery of 131 hard-discs and 06 laptops and the data is being
retrieved and incriminating material linking the accused will take
some time. However, they are trying to expedite the investigation
and 01 hard-disc retrieved so far has provided information about
some accused and victims. They have, so far, examined 3-4
victims who are residents of USA.
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7.3 Ld. Prosecutor had further argued that invocation of
Section 467 IPC is the discretion of the IO and it cannot be said
at this stage that it cannot be invoked. There was some messages
received by the victims Online which are forged documents. It is
not necessary to link the said documents with each and every
accused persons at this stage as it will come out during
investigation. He further argued that the Court cannot add or
delete provisions of law from FIR and relied upon
State of
Gujarat vs. Girish Raddhakrishnan Varde, Criminal Appeal No.
1996/2013 (Arising out of SLP (Crl.)734/2012).
7.4 Ld. Prosecutor had strongly argued that accused
persons are seeking bail not so much on merits but on a technical
point of grounds of arrest not being provided in writing. He
argued that in
Ram Kishore Arora vs. Directorate of
Enforcement, 2023 INSC 1082, it was held that action of
informing the arresting person about the grounds of his arrest is a
sufficient compliance of Section 19 of PMLA and also Article 22
of Constitution of India. Though the Ld. Prosecutor did concede
that specific grounds of arrest in writing may not have been
provided to each accused, yet the same can be discerned from the
FIR. He further argued that the judgment in Pankaj Bansal
(Supra) was on technical aspect.
7.5 Ld. Prosecutor further argued that applicants were
aware and participated in the activities of the Call Center and
they have not disclosed what work they did there. There is no
employment/service records of the applicants and no
employment agreement. Regarding the contention of period of
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employment of applicants in the Call Center vis-a-vis period
covered by the case, it will be a matter of investigation and CDR
of accused persons is being scrutinized. The investigation of this
case is still ongoing. The witnesses are being ascertained and
examined. Applicants may influence the witnesses and tamper
with the evidence. The main accused persons are absconding. At
the time when all 43 accused persons were apprehended, 13 of
them provided wrong residential address.
7.6 It was, thus, prayed that bail applications of
applicants be dismissed. He had relied upon the following
judgments :-
i) Gautam Thapar vs. Directorate of Enforcement,
2021:DHC:3120;
ii) State of Gujarat vs. Girish Raddhakrishnan Varde,
Criminal Appeal No. 1996/2013 (Arising out of SLP
(Crl.)734/2012);
iii) Irshad Ahmad vs. State of NCT of Delhi, Bail
ApplN.894/2024 dated 13 March 2024;
iv) Santosh Bardiyas vs. The State of Madhya Pradesh,
Criminal Revision No. 1484 of 2021 dated 1st
December 2021;
v) Vineet Jhavar vs. State of NCT of Delhi,
2023:DHC:0714;
vi) Ram Kishore Arora vs. Directorate of Enforcement,
2023 INSC 1082;
vii) Ram Kotumal Issrani vs. Directorate of Enforcement
& Anr. (SLP No. 6181 of 2024) Hon'ble Supreme
Court of India.
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8. A. Applicability of Section 467 IPC
(1) It was contended by the Ld. Counsel for the
applicants that Section 467 IPC has been added mainly to deny
the benefit of applicability of Section 41A Cr.P.C. All other
Sections invite a maximum sentence of upto seven years and
thus, this was only a ruse to arrest the accused. Furthermore,
applicants have no role to play in any forgery. For applicability
of Section 467 IPC, there has to be a specific allegations and not
a general one.
Ld. Counsel had relied upon
Arnesh Kumar vs. State
of Bihar & Another (2014) 8 SCC 273.
(2) Ld. Prosecutor had argued that Section 467 IPC is
attracted as there has been a forgery in terms of making of a
document which was sent and seen by the victims on their
computers during the fraudulent transaction. Moreover, the Court
cannot add or delete any provision of law from FIR.
(3) As far as this aspect is concerned, normally, the IO
will have the discretion to invokes Sections and the Court will
not normally sit in judgments against his discretion. However,
during investigation, the IO has to show the forgery and linkage
of the applicants to the same.
B. Arrest and Remand of Accused
(1) It was vehemently argued by Ld. Counsel for applicants
that applicants were arrested on 24.07.2024 at about 11.30 PM
when the raid was conducted by the CBI. Their movements were
then blocked and they were not allowed to go out of the
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premises. They were under detention of CBI and were also not
produced before the Magistrate within 24 hours of their
arrest/detention. The IO had prepared an arrest memo on
25.07.2024 and produced them before the Ld. Duty Magistrate
on 26.07.2024. He had further argued that the arrest of the
applicants by the IO was illegal. Copy of the FIR or the remand
application was not provided to the applicants or their counsel.
This issue of non-providing of documents and the arrest being
illegal was raised before the Ld. Duty Magistrate, which instead
of adjudicating the issue, remanded the applicants to custody.
The said act of remand was in the teeth of orders of the Hon'ble
Supreme Court of India. In fact, after the arguments on the
application of remand was completed, copy of the FIR and
remand application was provided to the applicants.
(2) Ld. Prosecutor had argued that arrest has to be
effected from the time as mentioned in the arrest memo which is
25.07.2024 and not from 24.07.2024 when the applicants were
apprehended. It was also argued that the period from 24.07.2024
at 11.45 PM till they were arrested on 25.07.2024 cannot be
counted as custody/detention of CBI.
(3) On this issue, both the applicants and the CBI have
produced judgments to contend their opposite points of view.
The Ld. Prosecutor had rightly referred to the proceedings
pending before Hon'ble Supreme Court of India in
Ram Kotumal
Issrani vs. Directorate of Enforcement & Anr. (SLP No. 6181 of
2024) wherein it is noted that the counsel for petitioner had
pointed out that various Hon'ble High Courts have held that a
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person is taken to be arrested from the moment his liberty is
curtailed and the formal time of arrest as shown in the arrest
memo may be immaterial. The proposition of law is pending
consideration before the Hon'ble Supreme Court of India.
Ld. Prosecutor has referred to Gautam Thapar
(Supra) which is a judgment of Hon'ble High Court of Delhi
wherein the officers of ED entered the building at 8.30 AM,
conducted search till 3.00 PM, recorded statements till 7.55 PM
and thereafter arrested the accused under Section 19 of PMLA.
Recording this, the petition to challenge the arrest was dismissed.
In the present case, applicants were admittedly
apprehended at about 11.45 PM on 24.07.2024 and arrest memo
was prepared on 25.07.2024. It appears that arrest cannot be
taken exactly at the same time the applicants are apprehended as
IO will have to do some inquiry before actually arresting an
accused. However, this will have a bearing on the grounds of
arrest shown at the time arrest recorded in arrest memo.
C. Grounds of Arrest in Writing
(1) This is one of the main reason agitated by the
counsels for illegal arrest and bail.
(2) It was contended that specific grounds of arrest in
writing have not been provided to the accused rendering the
arrest illegal entitling the accused to release as also bail.
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On the other hand, Ld. Prosecutor did concede that
specific grounds of arrest are not mentioned but the FIR
discloses the offence.
(3) On this issue, there is a judgment of Hon'ble
Supreme Court of India titled as
Pankaj Bansal vs. Union of
India, 2023 INSC 866, it was held that copy of written grounds
of arrest is furnished to the arrested person as a matter of course
and without exception.
Moreover in
Prabir Purkayastha vs. State, 2024
INSC 414, Hon'ble Supreme Court of India held that grounds of
arrest have to be conveyed to the accused in writing and this ratio
is binding on all the courts in the country by virtue of Article 141
of the Constitution of India. The relevant paragraphs of the
judgment are reproduced below :-
“……...19. We may note that the modified
application of Section 167 CrPC is also common to
both the statutes. Thus, we have no hesitation in
holding that the interpretation of statutory mandate
laid down by this Court in the case of Pankaj
Bansal(supra) on the aspect of informing the
arrested person the grounds of arrest in writing has
to be applied pari passu to a person arrested in a
case registered under the provisions of the UAPA.
20. Resultantly, there is no doubt in the mind of the
Court that any person arrested for allegation of
commission of offences under the provisions of
UAPA or for that matter any other offence(s) has a
fundamental and a statutory right to be informed
about the grounds of arrest in writing and a copy of
such written grounds of arrest have to be furnished
to the arrested person as a matter of course and
without exception at the earliest. The purpose of
informing to the arrested person the grounds of
arrest is salutary and sacrosanct inasmuch as, this
information would be the only effective means for
the arrested person to consult his Advocate; oppose
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the police custody remand and to seek bail. Any
other interpretation would tantamount to diluting
the sanctity of the fundamental right guaranteed
under Article 22(1) of the Constitution of
India…….
…….22. The right to be informed about the
grounds of arrest flows from Article 22(1) of the
Constitution of India and any infringement of this
fundamental right would vitiate the process of
arrest and remand. Mere fact that a charge sheet has
been filed in the matter, would not validate the
illegality and the unconstitutionality committed at
the time of arresting the accused and the grant of
initial police custody remand to the accused. …...
…….30. Hence, we have no hesitation in reiterating
that the requirement to communicate the grounds of
arrest or the grounds of detention in writing to a
person arrested in connection with an offence or a
person placed under preventive detention as
provided under Articles 22(1) and 22(5) of the
Constitution of India is sacrosanct and cannot be
breached under any situation. Non- compliance of
this constitutional requirement and statutory
mandate would lead to the custody or the detention
being rendered illegal, as the case may be.
31. Furthermore, the provisions of Article 22(1)
have already been interpreted by this Court in
Pankaj Bansal(supra) laying down beyond the pale
of doubt that the grounds of arrest must be
communicated in writing to the person arrested of
an offence at the earliest. Hence, the fervent plea of
learned ASG that there was no requirement under
law to communicate the grounds of arrest in writing
to the accused appellant is noted to be rejected…….
…….38. The interpretation given by the learned
Single Judge that the grounds of arrest were
conveyed to the accused in writing vide the arrest
memo is unacceptable on the face of the record
because the arrest memo does not indicate the
grounds of arrest being incorporated in the said
document. Column No. 9 of the arrest
memo(Annexure P-7) which is being reproduced
hereinbelow simply sets out the 'reasons for arrest'
which are formal in nature and can be generally
attributed to any person arrested on accusation of an
offence whereas the 'grounds of arrest' would be
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personal in nature and specific to the person
arrested.
*9. Reason for arrest
a. Prevent accused person from committing
any further offence.
b. For proper investigation of the offence.
c. To prevent the accused person from causing
the evidence of the offence to disappear or
tempering with such evidence in any
manner.
d. To prevent such person from making any
inducement threat or promise to any person
acquainted the facts of the case so as to
dissuade him from disclosing such facts to
the Court or to the Police officer.
e. As unless such person is arrested, his
presence in the Court whenever required
cannot be ensured."…...
……49. It may be reiterated at the cost of repetition
that there is a significant difference in the phrase
'reasons for arrest' and 'grounds of arrest'. The
reasons for arrest' as indicated in the arrest memo
are purely formal parameters, viz., to prevent the
accused person from committing any further
offence; for proper investigation of the offence; to
prevent the accused person from causing the
evidence of the offence to disappear or tempering
with such evidence in any manner; to prevent the
arrested accused all basic facts on which he was
being arrested so as to provide him an opportunity
of defending himself against custodial remand and
to seek bail. Thus, the 'grounds of arrest' would
invariably be personal to the accused and cannot be
equated with the 'reasons of arrest' which are
general in nature.
50. From the detailed analysis made above, there is
no hesitation in the mind of the Court to reach to a
conclusion that the copy of the remand application
in the purported exercise of communication of the
grounds of arrest in writing was not provided to the
accused appellant or his counsel before passing of
the order of remand dated 4th October, 2023 which
vitiates the arrest and subsequent remand of the
appellant.
51. As a result, the appellant is entitled to a
direction for release from custody by applying the
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ratio of the judgment rendered by this Court in the
case of Pankaj Bansal (supra)……”.
Hon'ble High Court of Bombay, as argued by the
counsels, in
Manulla M Kanchwala vs. State of Maharashtra,
MANU/MH/5167/2024 held that not providing the grounds of
arrest in writing is violation of the Constitution mandate under
Article 22 of the Constitution and Section 50 of Cr.P.C.
It was held by the Hon'ble Supreme Court of India
in
Gautam Navlakha vs. NIA (2022) 13 SCC 542 where in para
no. 75, it noted that ordinarily the accused would seek bail and
legality and the need for remand would also be considered by the
High Court or the Court of Sessions in an application under
Section 439 Cr.P.C.
In the present case, admittedly applicants were
apprehended on 24.07.2024 and shown as arrested in the arrest
memo on 25.07.2024 after inquiry. However, the arrest memo in
the column of grounds of arrest only shows Sections of IPC
mentioned in the FIR (in the arrest memo, it is stated that
grounds of arrest has been explained and he is alleged to have
committed the offences under IPC & I.T. Act). Thus, no specific
grounds of arrest as individually applicable to applicants has
been mentioned or provided to the accused in writing. The
Hon'ble Supreme Court of India has clearly held that specific
grounds of arrest in writing for each accused has to be mentioned
and provided to the accused at the time of arrest but this has not
been done at all. In fact, in the reply to the bail application, it is
stated that applicants were arrested after informing them
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grounds/reasons of arrest and family members were informed
about their arrest. This implies that grounds and reasons for
arrest are being treated as same even at the time of filing reply to
the bail applications. Providing of the grounds of arrest in
writing is a mandate of the Hon'ble Supreme Court of India and
which has been specifically stated to be under Article 141 of the
Constitution of India.
Grounds of arrest is all the more relevant as FIR was
registered on 22.07.2024 and search warrants were taken. It is
not a case where a raid was conducted and something illegal
emerged. Moreover, the accused were in the custody of CBI
from 24.07.2024 till 25.07.2024 when they were shown arrested
in the arrest memo.
Moreover, the order dated 26.07.2024 passed by the
Ld. Magistrate records that accused persons were produced at
about 5.50 PM on 26.07.2024 and accused have argued that copy
of FIR has not been supplied to the accused persons and in
response, the prosecution had alleged that although the copy of
FIR was not supplied at that time, the accused were very well
informed of the grounds of arrest and provided the copy of arrest
memo. The FIR was also not uploaded on the public domain.
On the question of arrest being illegal, the issue was
kept pending for another date and after all the proceedings were
over, it was recorded “ copy of the FIR and the remand
application has now been supplied to the counsel for accused”.
Thus, the accused persons were provided the copy of the FIR
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only at that stage and thus, mentioning only Sections in the
column of grounds of arrest in the arrest memo on the face of it is
grossly insufficient to meet the requirement of law.
D. No doubt, there are serious allegations of an illegal
Call Center being run from the raided premises from Gurgaon
and foreign nationals have been cheated by delivery of pop-up
messages on the computer screens as if sent by Microsoft,
gaining remote access to their computer systems, wiring transfer
of funds from bank accounts to Federal Reserves in the guise of
prevention from hacking and transfer of funds with accused
adopting pseudonymous names. However, as per the FIR, the
period under investigation is November 2022 till April 2024. As
per the reply filed, the Call Center was operated from Noida and
same was closed in October 2023 and illegal operation began in
the name of Innonet Technology OPC Pvt. Ltd. at Gurgaon in
2024. Thus, the role of the accused in reference to the period
under investigation and the place at Gurgaon or Noida needs to
be specified. On being asked, it was apprised that hard-disc data
pertaining to Noida is still to be retrieved to find connection with
the accused.
At the same time, recovery of digital devices found
at the premises has already been effected. As admitted, the
retrieving and scrutiny of the data from the said hard-discs will
take months and perhaps years after which the entire collection
of evidence qua each accused will take place.
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E. Though strangely the applicants do not have any
written employment agreement with week explanations, yet they,
it appears, are not the owners of the said Call Center but were
working at the same.
F. It is argued that the applicants are young and
without any criminal antecedents. This is not disputed by the
prosecution. Nothing concrete has been shown to show that they
are flight risk or can tamper with evidence. The case is
essentially based on documentary evidence and the digital
devices have already been seized.
G. They are also entitled to parity as the case of the
present applicants is almost same that of other applicants, who
have already been granted bail.
H. All offences are magistrate triable and accused are
in custody since 24.07.2024.
9. In view of the above discussion and considering the
facts and circumstances of the case, I am inclined to allow the
bail applications of all the applicants.
10. Accordingly, the bail applications of all the twelve
applicants namely 12 applicants/accused persons namely Shivam
Bhardwaj, Rahul Mandal, Tarneet Singh, Mohit Kumar, Vijit
Dhingra, Shubham Jain, Paras Arora, Dinesh Gohil, Ambuj
Mathur, Tushar Arora, Neha and Gurjeet Singh stand allowed
and they are admitted to bail on furnishing personal bond in the
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sum of Rs. 50,000/-each with one surety in the like amount
subject to the satisfaction of Ld. Trial Court/Ld. Link Judge/Ld.
Duty Judge subject to the following conditions:-
(a) They shall not tamper with the evidence and
shall not try to contact or influence the witnesses;
(b) They shall attend the court on every date of
hearing or as directed by court;
(c) They will not leave the country without the
permission of the Ld. Trial Court and shall deposit
their passport, if any, with the Court concerned;
(d) They will join and co-operate in the investigation
and shall not indulge in any activity influencing the
investigation.
All the applications are accordingly disposed off.
Copy of this order be given dasti to Ld. Counsel for
applicants/accused persons as also to Ld. Prosecutor for CBI/IO.
(Amitabh Rawat)
Special Judge (PC Act) CBI-14
Rouse Avenue District Court
New Delhi : 13.09.2024
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