Bail should not be denied based on unsubstantiated allegations, particularly when previous similar allegations were dismissed and no evidence of flight risk or tampering exists.

Judgment

Mr. Arun Monga, J.

CRM-44060-2023

For the reasons stated in application, same is allowed subject to all just exceptions.

Main case (O&M)

Following the denial of bail by the learned trial Court, the petitioner is now before this Court seeking his release as an under trial in a case FIR No.208 dated July 17, 2023, registered under Sections 327 , 323, 294, 506, 120-B, 384 of the INDIAN PENAL CODE , 1860 (hereinafter referred to as ‘IPC’) (Section 201 IPC added later on), at the Zirakpur, Police Station in SAS Nagar (Mohali).

2. According to the prosecution’s account, the complainant, Poonam Rajan, filed a complaint on June 15, 2023, with the SHO of P.S. Zirakpur, seeking the registration of a case against Ashish Kapoor (the petitioner), his wife Kamal Kapoor, Harjinder Singh ASI, DSP Pawan Kumar, DSP Tarlochan, DSP Samarpal, DSP Pawan Kumar (who was the SHO of PS Zirakpur at the time), Arun Rajan, Hem Raj, and others. Allegations levelled include a conspiracy among them with the motive to illegally torture the complainant and her family members.

2.1. The complainant claimed that she was tortured and beaten while under police remand in FIR No.151 from May 09, 2018, to May 22, 2018. A video clip showed Ashish Kapoor (the petitioner) physically assaulting the complainant in the police station. Harjinder Singh ASI served as the Investigating Officer (I.O.) in that case and was a close aide of the petitioner. The petitioner and Samarpal were alleged to have voluntarily beaten the complainant and her brother, Kuldeep, to force confessions regarding property matters, along with threats to falsely incriminate them with heavy charges. The video clip was supported by statements from DSP Pawan Kumar, DSP Tarlochan, and DSP Samarpal, who were accused of misusing their official powers at the time. It was further alleged that they confessed to their presence at the scene during the alleged torture.

2.2. Kamal Kapoor was accused of recording videos of the complainant’s torture at the hands of the petitioner and making video calls to Arun Rajan, the complainant’s husband, who also allegedly instigated the accused not to pursue divorce proceedings. Hem Raj also visited P.S. Zirakpur during those days and indicated he would provide a statement in favour of Lovlish Garg, who was a close aide of the petitioner. Consequently, an FIR was registered. The petitioner was arrested during the investigation and has been in custody since July 19, 2023.

3. First and foremost, learned Senior Counsel for the petitioner argues that the co-accused, Hem Raj, has already been granted interim anticipatory bail by an order dated August 1, 2023 (Annexure P-14) from the lower court. Additionally, the co-accused, Lovish Garg, had been granted interim anticipatory bail by an order dated August 1, 2023 (Annexure P-15) by this Court. On the ground of parity alone, the petitioner is thus entitled to bail, yet he is languishing in jail.

3.1. Furthermore, the learned Senior Counsel for the petitioner argues that, based on same set of concocted allegations/incidents, the petitioner had previously been accused by the same complainant in FIR No.3, dated May 1, 2019, under Sections 354 and 376-D of IPC, as well as Sections 7 and 13(2) of the Prevention of Corruption Act, 1988, registered at Police Station, SAS Nagar. After an investigation, the police presented a cancellation report dated February 24, 2022 (Annexure P-2), finding the allegations against the petitioner to be false.

3.2. The complainant’s statement was recorded under Section 164 Cr.P.C., and subsequently, charges under Section 376-D, 354 of IPC, and Sections 7 and 13(2) of the PC Act were added