Punjab-Haryana High Court
Deepak vs State Of Haryana on 29 August, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-M-41532-2021 2023:PHHC:113593
203-5 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M No.41532 of 2021
Date of Decision: 29.08.2023
Deepak ...Pe oner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Susheel Gautam, Advocate
for the pe oner.
Mr. Manish Bansal, Sr. D.A.G, Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta on Sec ons
197 05.05.2020 Kharkhoda, District 188, 380, 457, 409, 120-B
Sonipat IPC; 61/1/14 of Punjab Excise
Act (Haryana Amendment
Bill, 2020) and 7/7-A/13 of
Preven on of Corrup on Act,
1988 (Sec ons 420, 467, 468,
471, 201 IPC and Sec ons
25/54/59 of Arms Act added
later on)
1. The pe oners apprehending arrest in the FIR cap oned above, have come up
before this Court under Sec on 438 CrPC seeking an cipatory bail.
2. Vide order dated 04.10.2021, the pe oner's arrest was stayed by this court, which is con nuing ll date.
3. Pe oner's counsel prays for bail by imposing any stringent condi ons. Pe oner's counsel argued that the custodial inves ga on would serve no purpose whatsoever, and the pre-trial incarcera on would cause an irreversible injus ce to the pe oner and family.
4. State's counsel opposes the bail.
JYOTI 2023.09.02 13:17 I attest to the accuracy and integrity of this order/judgment. 1 CRM-M-41532-2021 2023:PHHC:113593
REASONING:
5. The pe oner was granted interim protec on, and during the interregnum, there is no allega on that he had in midated the vic m or vic m's family or the witnesses or that he had hampered the inves ga on, or despite being called to join the inves ga on, he did not appear before the inves gator. Even a prima facie perusal of paragraphs 4 and 5 of the bail pe on needs considera on for bail. Given the above, there would be no jus fica on to discon nue the interim protec on, subject to the pe oner complying with the terms of the bail order and the following addi onal condi ons.
6. In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Cons tu onal Bench of Supreme Court held that the bail decision must enter the cumula ve effect of the variety of circumstances jus fying the grant or refusal of bail. In Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are en tled to bail if the Court concerned concludes that the prosecu on has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its sa sfac on for the need to release such person on bail, in the given fact situa ons. The rejec on of bail does not preclude filing a subsequent applica on. The courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situa on. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court no ceably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances sugges ve of fleeing from jus ce or thwar ng the course of jus ce or crea ng other troubles in the shape of repea ng offences or in mida ng witnesses and the like by the pe oner who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the pe oner to avoid the course of jus ce and must weigh when considering the ques on of jail. So also, the heinousness of the crime. In Gudikan Narasimhulu v Public Prosecutor, (1978) 1 SCC 240, (Para 16), Supreme Court held that the delicate light of the law favors release unless countered by the nega ve criteria necessita ng that course. In Prahlad Singh Bha v NCT, Delhi, (2001) 4 SCC 280, Supreme Court highlighted one of the factors for bail to be the public or the State's immense interest and similar other considera ons. In Dataram Singh v State of U ar Pradesh, 2018:INSC:107 [Para 7], (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is en rely within the discre on of the judge hearing the ma er and though that discre on is unfe ered, it must be exercised judiciously, compassionately, and in a humane manner. Also, condi ons for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail JYOTI illusory. 2023.09.02 13:17 I attest to the accuracy and integrity of this order/judgment. 2 CRM-M-41532-2021 2023:PHHC:113593
7. The possibility of the accused influencing the inves ga on, tampering with evidence, in mida ng witnesses, and the likelihood of fleeing jus ce, can be taken care of by imposing elabora ve and stringent condi ons. In Sushila Aggarwal v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (2020) 5 SCC 1, Para 92, the Cons tu onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric ve condi ons. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, Supreme Court holds that while exercising power Under Sec on 438 of the Code, the Court is duty-bound to strike a balance between the individual's right to personal freedom and the right of inves ga on of the police. While exercising utmost restraint, the Court can impose condi ons countenancing its object as permissible under the law to ensure an uninterrupted and unhampered inves ga on.
8. Without commen ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reason that the pe oner has already been granted benefit of interim protec on (arrest stayed), the pe oner makes a case for bail, subject to the following terms and condi ons, which shall be over and above and irrespec ve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
9. In Madhu Tanwar and Anr. v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M-27097-2023, decided on 29-05-2023, this court observed, [10] The exponen al growth in technology and ar ficial intelligence has transformed iden fica on techniques remarkably. Voice, gait, and facial recogni on are incredibly sophis cated and pervasive. Impersona on, as we know it tradi onally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from jus ce, then in such cases, appropriate condi ons can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss.
[21] In this era when the knowledge revolu on has just begun, to keep pace with exponen al and unimaginable changes the technology has brought to human lives, it is only fi ng that the dependence of the accused on surety is minimized by giving alterna ve op ons. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate.
10. Given above, provided the pe oner is not required in any other case, the pe oner shall be released on bail in the FIR cap oned above, in the following terms:
(a). Pe oner to furnish personal bond of Rs.Ten thousand (INR 10,000/);
AND JYOTI 2023.09.02 13:17 I attest to the accuracy and integrity of this order/judgment. 3 CRM-M-41532-2021 2023:PHHC:113593
(b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the sa sfac on of the concerned inves gator, and in case of non-availability, to any nearest Illaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned officer must sa sfy that if the accused fails to appear in court, then such surety can produce the accused before the court.
OR
(b). Pe oner to hand over to the concerned inves gator a fixed deposit for Rs. Ten thousand only (INR 10,000/-), with the clause of automa c renewal of the principal and the interest rever ng to the linked account, made in favor of the 'Chief Judicial Magistrate' of the concerned district, or blocking the aforesaid amount in favour of the concerned 'Chief Judicial Magistrate'. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be permissible for the pe oner to prepare an account payee demand dra favouring concerned Chief Judicial Magistrate for the similar amount.
(c). Such court shall have a lien over the funds un l the case's closure or discharged by subs tu on, or up to the expiry of the period men oned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the en re amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.
(d). The pe oner is to also execute a bond for a endance in the concerned court(s) as and when asked to do so. The presenta on of the personal bond shall be deemed acceptance of the declara ons made in the bail pe on and all other s pula ons, terms, and condi ons of sec on 438(2) of the Code of Criminal Procedure, 1973, and of this bail order.
(e). While furnishing personal bond, the pe oners/applicants shall men on the following personal iden fica on details:
1. AADHAR number
2. Passport number, (If available), when the a es ng officer/court thinks appropriate or considers the accused as a flight risk.
3. Mobile number (If available) JYOTI 2023.09.02 13:17 I attest to the accuracy and integrity of this order/judgment. 4 CRM-M-41532-2021 2023:PHHC:113593
4. E-Mail id (If available)
11. The pe oner is directed to join the inves ga on within seven days and also as and when called by the Inves gator. The pe oner shall be in deemed custody for Sec on 27 of the Indian Evidence Act. The pe oner shall join the inves ga on as and when called by the Inves ga ng Officer or any Superior Officer; and shall cooperate with the inves ga on at all further stages as required. In the event of failure to do so, it will be open for the prosecu on to seek cancella on of the bail. Whenever the inves ga on occurs within the police premises, the pe oner shall not be called before 8 AM, let off before 6 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.
12. The pe oner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
13. During the trial's pendency, if the pe oner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condi on as s pulated in this order, it shall always be permissible to the respondent to apply for cancella on of this bail. It shall further be open for any inves ga ng agency to bring it to the no ce of the Court seized of the subsequent applica on that the accused was earlier cau oned not to indulge in criminal ac vi es. Otherwise, the bail bonds shall remain in force throughout the trial and a er that in Sec on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi ons.
14. Pe oner to comply with their undertaking made in the bail pe on, made before this court through counsel as reflected at the beginning of this order or in earlier orders. If the pe oner fails to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the vic m/complainant may file any such applica on for the cancella on of bail, and the State shall file the said applica on.
15. The pe oner is directed not to keep more than one prepaid SIM, i.e., one pre- paid mobile phone number, ll the conclusion of the trial; however, this restric on is only on prepaid SIMs [mobile numbers] and not on post-paid connec ons or landline numbers. The pe oner must comply with this condi on within fi een days of release from today. The concerned DySP shall also direct all the telecom service providers to deac vate all prepaid SIM cards and prepaid mobile numbers issued to the pe oner, JYOTI 2023.09.02 13:17 I attest to the accuracy and integrity of this order/judgment. 5 CRM-M-41532-2021 2023:PHHC:113593 except the one that is men oned as the primary number/ default number linked with the AADHAAR card and further that ll the no objec on from the concerned SHO, the mobile service providers shall not issue second pre-paid SIM/ mobile number in the pe oner's name. Since, as on date, in India, there are only four prominent mobile service providers, namely BSNL, Airtel, Vodafone-Idea, and Reliance Jio, any other telecom service provider are directed to comply with the direc ons of the concerned Superintendent of Police/Commissioner of Police, issued in this regard and disable all prepaid mobile phone numbers issued in the name of the pe oner, except the main number/default number linked with AADHAR, by taking such informa on from the pe oner's AADHAR details or any other source, for which they shall be legally en tled by this order. This condi on shall con nue ll the comple on of the trial or closure of the case, whichever is earlier. In Vernon v. The State of Maharashtra, 2023 INSC 655, [para 45], while gran ng bail under Unlawful Ac vi es (Preven on) Act, 2002, Supreme Court had directed imposi on of the similar condi on, which reads as follows, "(d) Both the appellants shall use only one Mobile Phone each, during the me they remain on bail and shall inform the Inves ga ng Officer of the NIA, their respec ve mobile numbers."
16. Given the nature of the allega ons and the other circumstances peculiar to this case, the pe oner shall surrender all weapons, firearms, ammuni on, if any, along with the arms license to the concerned authority within fi een days from today and inform the Inves gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe oner shall be en tled to renew and take it back in case of acqui al in this case, provided otherwise permissible in the concerned rules.
17. Within 15 days, the pe oner(s) shall handover his notarized affidavit to the inves gator men oning the complete following details, held either individually or jointly, and cash-in-hand. If the pe oner(s) fail to comply with this condi on, then on this ground alone. In that case, the bail might be canceled, and the complainant may file any such applica on for the cancella on of bail, and the State shall file the said applica on. The pe oner(s) to declare his all assets in the following formats in Rupees (INR):
Total value of all net worth as on 31 Mar 2023 Current total value of all net worth Cash in hand as on date (Indian Rupee) Cash in hand as on date (All other currencies) Details of all bank accounts JYOTI 2023.09.02 13:17 I attest to the accuracy and integrity of this order/judgment. 6 CRM-M-41532-2021 2023:PHHC:113593 Current amount in cash, savings, checking, deposit accounts and crypto currency Total Value of equity shares & mutual funds as on 31 Mar 2023 Current total Value of equity shares & mutual funds Total Value of recurring deposit, fixed deposits, bonds, pension plans, & annuity insurance policies as on 31 Mar 2023 Current total Value of recurring deposit, fixed deposits, bonds, pension plans, & annuity insurance policies Current total market value of all jewellery, sovereign metals, artefacts, an ques etc. Current total market value of property including buildings, land etc. its area and loca on Total income in FY 2022-23 including farms, agriculture, hor culture, wages, salaries, commissions, interests, royal es, rent, income, or gi s received from other family members Enter the details of vehicles owned or in possession Any other asset or income Total liabili es as on 31 March 2023 (Including loans) Current total liabili es (Including loans) Approximate expenditure during FY 2022-23 Any other expenses
18. The condi ons men oned above imposed by this court are to endeavour that the accused does not repeat the offence and to ensure the safety of the witnesses, vic m, and their families. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Pe on (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three- Judge bench of Hon'ble Supreme Court holds that "The bail condi ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor onal to the purpose of imposing them. The courts while imposing bail condi ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi ons that would result in the depriva on of rights and liber es must be eschewed."
19. Any Advocate for the pe oner and the Officer in whose presence the pe oner puts signatures on personal bonds shall explain all condi ons of this bail order in any language that the pe oner understands.
JYOTI 2023.09.02 13:17 I attest to the accuracy and integrity of this order/judgment. 7CRM-M-41532-2021 2023:PHHC:113593
20. If the pe oner finds bond amount beyond social and financial reach, it may be brought to the no ce of this Court for appropriate reduc on. Further, if the pe oner finds bail condi on(s) as viola ng fundamental, human, or other rights, or causing difficulty due to any situa on, then for modifica on of such term(s), the pe oner may file a reasoned applica on before this Court, and a er taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condi on.
21. This order does not, in any manner, limit or restrict the rights of the Police or the inves ga ng agency from further inves ga on as per law.
22. In case the Inves gator/Officer-In-Charge of the concerned Police Sta on arraigns another sec on of any penal offence in this FIR, and if the new sec on prescribes maximum sentence which is not greater than the sec ons men oned above, then this bail order shall be deemed to have also been passed for the newly added sec on(s). However, suppose the newly inserted sec ons prescribe a sentence exceeding the maximum sentence prescribed in the sec ons men oned above, then, in that case, the Inves gator/Officer-In-Charge shall give the pe oner no ce of a minimum of seven days providing an opportunity to avail the remedies available in law.
23. Any observa on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
24. In return for the protec on from incarcera on, the Court believes that the accused shall also reciprocate through desirable behavior.
25. The SHO of the concerned police sta on or the inves ga ng officer shall arrange to send a copy of this order, preferably a so copy, to the complainant and the vic m, within two days. If the vic m(s) no ce any viola on of this order, they may inform the SHO of the concerned police sta on, the trial court, or even this court.
26. There would be no need for a cer fied copy of this order for furnishing bonds, and any Advocate for the Pe oner can download this order along with case status from the official web page of this Court and a est it to be a true copy. In case the a es ng officer wants to verify the authen city, such an officer can also verify its authen city and may download and use the downloaded copy for a es ng bonds.
Pe on allowed in aforesaid terms. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
29.08.2023 JUDGE
Jyo -II
Whether speaking/reasoned: Yes
JYOTI Whether reportable: No.
2023.09.02 13:17
I attest to the accuracy and
integrity of this order/judgment. 8