CRMPM/2283/2020 of DINESH KUMAR Vs STATE OF HP on 31 December 2020

IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA

Cr.MP(M) Nos. 2282, 2283 & 2284of 2020

Date of Decision: December 31, 2020

Versus

Coram:

COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE

Anoop Chitkara, Judge.

The petitioners apprehending imminent arrest on beingarraigned as accused have come up under Section 438 CrPC,seeking anticipatory bail.

2. Based on the complaint of Shubham Thakur, the policeregistered FIR No.99 of 2020, dated 27.12.2020, under Section 452,323, 325, 326, 341, 506 read with Section 34 of Indian Penal Code,1860, (IPC), in Police Station, Kasauli, District Solan, HimachalPradesh, disclosing cognizable and non-bailable offences.

3. The status report reveals that the petitioners have no criminalhistory relating to the offences prescribing sentence of greater thanseven years of imprisonment or when on conviction, the sentenceimposed was more than three years.

4. Briefly, the allegations against the petitioners are that on26.12.2020, at around 7.00 p.m., when the complainant was in thehouse of his Uncle (Tuaji), he heard the cries from his house. Afterthat he rushed towards his house and saw the accused-petitionersin the courtyard with ‘Danda’ and ‘Darat’ in their hands. After thaton seeing the complainant, the accused-petitioners fled away fromthe spot, however, before that they have badly injured the fatherand uncle of the complainant. After that when the injured werebeing shifted to the Hospital, the accused-petitioners have parkedtheir JCB Machines in the middle of the road and blocked it. Afterthat both the injured were taken to ESI Hospital Parwanoo in 108Ambulence, from where they were referred to the GovernmentHospital, Solan. After that, for further treatment, they both werereferred to MMU Sultanpur.

5. The Counsel for the petitioners seeks bail and submitted thaton the complaint of the accused cross FIRs have been registered.

6. The contention on behalf of the State is that if this Courtgrants bail, such order must be subject to conditions, especially ofnot repeating the criminal activities.

ANALYSIS AND REASONING:

7. In Gurbaksh Singh Sibbia and others v. State of Punjab,1980 (2) SCC 565, (Para 30), a Constitutional bench of Supreme

Court held that the bail decision must enter the cumulative effect ofthe variety of circumstances justifying the grant or refusal of bail. InKalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav,2005 (2) SCC 42, (Para 18) a three-member bench of SupremeCourt held that the persons accused of non-bailable offences areentitled to bail, if the Court concerned concludes that theprosecution has failed to establish a prima facie case against him,or despite the existence of a prima facie case, the Court recordsreasons for its satisfaction for the need to release such persons onbail, in the given fact situations. The rejection of bail does notpreclude filing a subsequent application, and the Courts can releaseon bail, provided the circumstances then prevailing requires, and achange in the fact situation. In State of Rajasthan, Jaipur v.Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Courtnoticeably illustrated that the basic rule may perhaps be tersely putas bail, not jail, except where there are circumstances suggestive offleeing from justice or thwarting the course of justice or creatingother troubles in the shape of repeating offences or intimidatingwitnesses and the like by the petitioner who seeks enlargement onbail from the court. It is true that the gravity of the offence involvedis likely to induce the petitioner to avoid the course of justice andmust weigh with us when considering the question of jail. So alsothe heinousness of the crime. In Gudikanti Narasimhulu v.Public Prosecutor, High Court of Andhra Pradesh, (1978) 1SCC 240, (Para 16), Supreme Court in Para 16, held that thedelicate light of the law favours release unless countered by thenegative criteria necessitating that course. In Dataram Singh v.State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6), SupremeCourt held that the grant or refusal of bail is entirely within thediscretion of the judge hearing the matter and though thatdiscretion is unfettered, it must be exercised judiciously and in ahumane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable ofcompliance, thereby making the grant of bail illusory.

8. Pre-trial incarceration needs justification depending upon theoffense's heinous nature, terms of the sentence prescribed in thestatute for such a crime, probability of the accused fleeing fromjustice, hampering the investigation, criminal history of theaccused, and doing away with the victim(s) and witnesses. TheCourt is under an obligation to maintain a balance between allstakeholders and safeguard the interests of the victim, accused,society, and State. However, while deciding bail applications, theCourts should discuss evidence relevant only for determining bail.The difference in the order of bail and final judgment is similar to asketch and a painting. However, some sketches are in detail andpaintings with a few strokes.

9. On the complaint of the accused-petitioners, cross FIR No.98stands registered. Mr. Sudhir Thakur, learned Senior Advocateassisted by Mr. Karun Negi, Advocate states that the complainantparty were the aggressors. On the other hand, Mr. Ram Lal Thakur,learned Additional Advocate General submits that it was theaccused-petitioners, who were aggressors. This is a disputedquestion, which will be dealt with at the time of trial, however,keeping in view the penal provisions involved and the nature of theallegations, there is not justification for custodial or pre-trialincarceration.

10. The possibility of the accused influencing the course of theinvestigation, tampering with evidence, intimidating witnesses, andthe likelihood of fleeing justice, can be taken care of by imposingelaborative conditions and stringent conditions. In SushilaAggarwal, (2020) 5 SCC 1, Para 92, the Constitutional bench heldthat unusually, subject to the evidence produced, the Courts canimpose restrictive conditions.

11. Given the above reasoning, the Court is granting bail to thepetitioners, subject to the imposition of following stringentconditions, which shall be over and above, and irrespective of thecontents of the form of bail bonds in chapter XXXIII of CrPC.Consequently, the present petitions are allowed, and in the event ofarrest the petitioners shall be released on bail in the FIR mentionedabove, on their furnishing personal bonds of INR 5,000/- each, (INRfive thousand only), with one surety each in the like amount to thesatisfaction of the Investigator/SHO of the concerned Police Station.The furnishing of bail bonds shall be deemed acceptance of allstipulations, terms, and conditions of this bail order:

a)The Attesting officer shall mention on the reverse page ofpersonal bonds, the permanent address of the petitionersalong with the phone number(s), WhatsApp number (if any),email (if any), and details of personal bank account(s) (ifavailable).

b)The petitioners shall join investigation as and when calledby the Investigating officer or any superior officer. Wheneverthe investigation takes place within the boundaries of thePolice Station or the Police Post, then the petitioners shall notbe called before 8 AM and shall be let off before 5 PM. Thepetitioners shall not be subjected to third-degree methods,indecent language, inhuman treatment, etc.

c)The petitioners shall join and cooperate in theinvestigation, and failure to do so shall entitle the prosecutionto seek cancellation of the anticipatory bail granted by thepresent order. (Kala Ram v. State of Punjab, 2018 (11) SCC350).

d)The petitioners shall not influence, browbeat, pressurize,make any inducement, threat, or promise, directly or indirectly,to the witnesses, the Police officials, or any other personacquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamperwith the evidence.

e)Once the trial begins, the petitioners shall not, in anymanner, try to delay the trial. The petitioners undertakes toappear before the concerned Court, on the issuance ofsummons/warrants by such Court. The petitioners shall attendthe trial on each date, unless exempted.

f)There shall be a presumption of proper service to thepetitioners about the date of hearing in the concerned Court,even if it takes place through SMS/ WhatsApp message/ E-Mail/or any other similar medium, by the Court.

g)In the first instance, the Court shall issue summons andmay inform the Petitioners about such summons through SMS/WhatsApp message/ E-Mail.

h)In case the petitioners fail to appear before the Court onthe specified date, then the concerned Court may issuebailable warrants, and to enable the accused to know the date,the Court may, if it so desires, also inform the petitioners aboutsuch Bailable warrants through SMS/ WhatsApp message/ E-Mail.

i)Finally, if the petitioners still fail to put in an appearance,then the concerned Court may issue Non-Bailable warrants toprocure the petitioners’ presence and send the petitioners tothe Judicial custody for a period for which the concerned Courtmay deem fit and proper.

j)In case of Non-appearance, then irrespective of thecontents of the bail bonds, the petitioners undertake to pay allthe expenditure (only the principal amount without interest),that the State might incur to produce him before such Court,provided such amount exceeds the amount recoverable afterforfeiture of the bail bonds, and also subject to the provisionsof Sections 446 & 446-A of CrPC. The petitioners’ failure to reimburse the State shall entitle the trial Court to order thetransfer of money from the bank account(s) of the petitioners.However, this recovery is subject to the condition that theexpenditure incurred must be spent to trace the petitionersand it relates to the exercise undertaken solely to arrest thepetitioners in that FIR, and during that voyage, the Police hadnot gone for any other purpose/function what so ever.

k)The petitioners shall intimate about the change ofresidential address and change of phone numbers, WhatsAppnumber, e-mail accounts, within thirty days from suchmodification, to the police station of this FIR, and theconcerned Court, if such stage arises.

l)The petitioners shall neither stare, stalk, make anygestures, remarks, call, contact, message thecomplainant, either physically, or through phone call orany other social media, nor roam around thecomplainant's home. The petitioners shall not contactthe complainant.

m)The petitioners shall abstain from all criminal activities. Ifdone, then while considering bail in the fresh FIR, the Courtshall take into account that even earlier, the Court hadcautioned the accused not to do so.

n)During the trial's pendency, if the petitioners repeat theoffence or commit any offence where the sentence prescribedis seven years or more, then the State may move anappropriate application for cancellation of this bail.

o)In case of violation of any of the conditions as stipulatedin this order, the State/Public Prosecutor may apply forcancellation of bail of the petitioners. Otherwise, the bail bondsshall continue to remain in force throughout the trial followingthe mandate of the Constitutional Bench inSushilaAggarwal,(2020) 5 SCC 1, Para 92, wherein the Constitutional bench held that anticipatory bail can continueuntil the end of the trial; however, the Courts can limit the bailperiod's tenure if unique or peculiar features require.

13. The learned Counsel representing the accused and the Officerin whose presence the petitioners put signatures on personal bondsshall explain all conditions of this bail order to the petitioners, invernacular and if not feasible, in Hindi or English.

14. In case the petitioners find the bail condition(s) as violatingfundamental, human, or other rights, or causing difficulty due toany situation, then for modification of such term(s), the petitionersmay file a reasoned application before this Court, and after takingcognizance, even before the Court taking cognizance or the trialCourt, as the case may be, and such Court shall also be competentto modify or delete any condition.

15. This order does not, in any manner, limit or restrict the rightsof the Police or the investigating agency, from further investigation,in accordance with law.

16. The present bail order is only for the FIR mentioned above. Itshall not be a blanket order of bail in any other case(s) registeredagainst the petitioners.

17. Any observation made hereinabove is neither an expression ofopinion on the merits of the case, nor shall the trial Court advert tothese comments.

18. In return for the protection from incarceration, the Courtbelieves that the accused shall also reciprocate through desirablebehavior.

The petition stands allowed in the terms mentioned above.

Copy Dasti.

December 31, 2020 (ps)

(Anoop Chitkara),Judge.