Himachal Pradesh High Court
Akash Sharma vs State Of Himachal Pradesh on 9 June, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 496 of 2020 .
Reserved on : 04th June,2020 Date of Decision : 09th June, 2020.
Akash Sharma ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 No.
For the petitioner
r : Mr. Sanjeev Bhushan, Senior
Advocate with Mr. Maan Singh,
Advocate.
For the respondent : Mr. Ashwani Sharma, Addl. A.G. with
Mr. Ram Lal Thakur, Asstt. A.G.
COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE Anoop Chitkara, Judge.
The petitioner, who is under arrest, on being arraigned as accused in FIR Number 194 of 2019, dated 12.12.2019, registered under Sections 212, 307, 332, 333 & 353 read with Section 34 of the Indian Penal Code and Section 25 of the Arms Act, in Police Station, Manali, District Kullu, H.P., disclosing non- bailable offences, has come up before this Court under Section 439 CrPC, seeking regular bail.
2. While issuing notices to the State, the Court had requested Mr. Nand Lal Thakur, learned Additional Advocate General to file the status report in the matter on or before the next date and 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 09/06/2020 20:21:28 :::HCHP 2also to procure the status report, either through e-mail or through other options of internet.
3. Mr. Nand Lal Thakur, learned Additional Advocate General .
has handed over the status report. He further submits that he has sent a copy of the status report to Mr. Maan Singh, Advocate, learned Counsel for the petitioner on his WhatsApp number.
4. I have gone through the status report(s) and heard counsel for the parties through video conference.
5. Prior to the present bail petition, the petitioner had filed similar petition registered as Cr.MP(M) No. 128 of 2020. Vide order dated 24.2.2020, this Court had declined the bail reserving liberty to file again after receipt of the copy of the Police report under Section 207 Cr.P.C. Consequently, the petitioner has come up again before this Court on receipt of such report.
FACTS
6. The gist of the First Information Report and the investigation is that the victim, who was working as a Home Guard, informed the Police Station, Manali that when he was performing his duty and was present on patrolling, then on the intervening night of 11th/12th December, 2019, at around 1:15 a.m., four persons were standing near English wine shop in Manali Bazaar. The victim was accompanied with another Home Guard personnel named Naresh Kumar. On seeking them standing, the victim along with his companion Naresh Kumar told them that as it is too late in the night and being winters, they should leave back to their home. After that, the victim and other Home Guard personnel Naresh Kumar went further for patrolling. When they had hardly walked for 50 metres, then those four persons, who were standing near the English wine ::: Downloaded on - 09/06/2020 20:21:28 :::HCHP 3 shop, came there and started beating Naresh Kumar with fist blows. At that time, one boy named Rohit was also present there, who tried to save Naresh Kumar. After that, one of them .
took out something, which appeared like a pistol and fired on Naresh Kumar. After that, those persons ran away from the spot. After the medical evidence, the police has incorporated Section 307 of the Indian Penal Code in the FIR.
PREVIOUS CRIMINAL HISTORY
7. As per the status report, the petitioner has no criminal history.
SUBMISSIONS:
8. The learned counsel for the bail petitioner submits that the allegations against the petitioner are false and he has nothing to do with the said allegations. He further states that petitioner has to shoulder responsibility of his family and also submitted that his bail petition be considered on humanitarian grounds in view of the spread of the Covid-19 pandemic.
ANALYSIS AND REASONING:
9. Pre-trial incarceration needs justification depending upon the heinous nature of the offence, terms of the sentence prescribed in the Statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with victim(s) and/or witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State.
10. The following aspects are relevant to decide the present bail petition:
::: Downloaded on - 09/06/2020 20:21:28 :::HCHP 4(a) The investigation is complete and the Police has also filed report under Section 173 (2) Cr.P.C., copy whereof has also been received by the accused.
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(b) The petitioner is in judicial custody since 12.12.2019.
(c) The petitioner is a permanent resident of address mentioned in the memo of parties i.e. Village Samhahan, P.O. and Tehsil Manali, District Kullu, HP, therefore, his presence can always be secured.
(d) Before releasing the petitioner from custody, her/his AADHAR and other proofs of identity to secure presence during trial.
14. Given the above reasoning, in my considered opinion, the judicial custody of the petitioner is not going to achieve any significant purpose. Thus, the Court is granting bail, subject to the following conditions, irrespective of the contents of the bail bonds, and the furnishing of personal bond shall be deemed acceptance of all stipulations, terms and conditions of this bail order:
(a) The petitioner shall furnish personal bond in the sum of Rs. 10,000/- (rupees ten thousand only) with one surety in the like amount, to the satisfaction of the Sessions Court/Special Court/ Chief Judicial Magistrate/ Ilaqua Magistrate/Duty Magistrate/the Court exercising jurisdiction over the concerned Police Station where FIR is registered.
(b) The bail bonds shall continue to remain in force throughout the trial and even after that in terms of Section 437-A of the CrPC.::: Downloaded on - 09/06/2020 20:21:28 :::HCHP 5
(c) The petitioner shall not influence, threaten, browbeat or pressurize the complainant, witnesses, and the Police official(s).
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(d) The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted with the facts of the case, to dissuade her from disclosing such facts to the Police, or the Court, or tamper with the evidence.
(e) The petitioner shall appear before the trial Court, on issuance of summons/warrants by such Court.
(f) There shall be a presumption of proper service to the petitioner about the date of hearing in the trial Court, even if such service takes place through phone/ mobile/SMS/WhatsApp/E-Mail or any other similar medium, by the trial Court, or by the Prosecution. In case the petitioner does not appear before the trial Court on such date of hearing, then the trial Court may issue bailable warrants, and if the petitioner still fails to put in appearance, then the trial Court may issue Non- Bailable warrants to procure the presence of the petitioner, and send the petitioner to the Judicial custody for the period for which the trial Court may deem fit and proper, without being unduly harsh towards him.
(g) The petitioner shall attend the trial on each date, unless exempted.
(h) In case of non-appearance on the intimated date, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure ::: Downloaded on - 09/06/2020 20:21:28 :::HCHP 6 (only the principal amount without interest), that the State might incur to produce him before such Court, provided such amount exceeds the amount recoverable .
after forfeiture of the bail bonds, subject to the provisions of Sections 446 & 446-A of CrPC. The failure of the petitioner to reimburse the State shall entitle the trial Court to order transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be only to trace the petitioner and relates to the exercise undertaken solely to nab the petitioner in that FIR, and during that voyage, the Police had not gone for any other purpose/function what so ever.
(i) The petitioner shall abstain from all criminal activities, if he does so, then in the fresh FIR, the Court shall take into account that even earlier the Court had cautioned the accused not to repeat the offence.
(j) During the pendency of the trial, if the petitioner commits any offence where the sentence prescribed is seven years or more, then this bail order shall stand cancelled automatically.
(k) The petitioner shall surrender all firearms along with ammunition, if any, and the arms license to the concerned authority within 30 days from today.
(l) The petitioner shall inform the SHO about the place of residence during trial. The petitioner shall intimate about the change of residential address, within two weeks from such change, to the police station, and after filing of the Police report also to the trial Court.
::: Downloaded on - 09/06/2020 20:21:28 :::HCHP 7(m) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may file an application for cancellation of bail of the .
petitioner, and even the trial Court shall be competent to cancel the bail.
15. In case the petitioner finds the bail condition(s) as violating fundamental or other rights, including any human rights, or faces any other difficulty due to any condition, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, before the Court taking cognizance or the trial Court, as the case may be.
16. The Counsel representing the accused and the Judicial officer accepting the bail bonds, shall explain all conditions of this bail order to the petitioner, in vernacular.
17. The petitioner undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner is acceptance of all such conditions.
18. Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing bail bonds in the aforesaid terms.
19. The Court attesting the bail bonds shall ascertain the identity of the bail-petitioner, his family members, through AADHAR Card. The petitioner shall give details of AADHAR Card, phone number(s), WhatsApp number, e-mail, etc., Pan Card and Passport if available, on the reverse page of the bonds. The petitioner shall also furnish details of personal bank account(s).
20. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation.
::: Downloaded on - 09/06/2020 20:21:28 :::HCHP 821. The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in all other cases, if any, registered against the petitioner.
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22. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.
23. The petition stands allowed in the terms mentioned above.
24. The Court Master shall handover this order to the concerned Branch of the Registry of this Court, and the said official shall immediately send a copy of this order to the District and Sessions Judge, concerned, by e-mail. The Court attesting the personal bonds shall not insist upon the certified copy of this order, and shall download the same from the website of this Court, which shall be sufficient for the purposes of the record.
The Court Master shall handover an authenticated copy of this order to the Counsel for the Petitioner, and to the Learned Advocate General, if they ask for the same.
(Anoop Chitkara), Judge.
June 09, 2020 (ps) ::: Downloaded on - 09/06/2020 20:21:28 :::HCHP