Punjab-Haryana High Court
Aashima Malhotra vs State Of Haryana on 11 April, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2023:PHHC:050028
CRM-M-11574-2023
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-11574-2023
Reserved on: 15.03.2023
Pronounced on: 11.04.2023
Aashima Malhotra ...Pe oner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Harsh Manocha, Advocate,
for the pe oner.
Mr. Rajat Gautam, D.A.G., Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta0on Sec0ons
132 24.03.2020 DLF, Sector-29, Gurugram 406, 420, 506, 166-A, 34,
120-B IPC (Challan presented
under Sec ons 406, 420, 467,
468, 471, 120-B IPC added
later on)
1. The pe oner, incarcera ng upon his arrest in the FIR cap oned above, has come up before this Court under Sec on 439 of Code of Criminal Procedure, 1973 (CrPC) seeking bail.
2. In paragraph 18 of the bail applica on, the accused declares the following criminal antecedents:
Sr. No. FIR No. Year Offences Police Sta0on 1. 300 2019 406, 420, 120-B IPC DLF Sector-29, Gurugram 2. 610 2019 406, 420, 120-B IPC DLF Sector-29, Gurugram 3. 16 2010 406, 420, 120-B IPC DLF Sector-29, Gurugram 4. 17 2010 406, 420, 120-B IPC DLF Sector-29, Gurugram 5. 132 2020 406, 420, 120-B IPC DLF Sector-29, Gurugram 6. 239 2020 406, 420, 120-B IPC DLF Sector-29, Gurugram 7. 198 2020 406, 420, 120-B IPC DLF Sector-29, Gurugram 8. 188 2020 406, 420, 120-B IPC DLF Sector-29, Gurugram 9. 63 2021 406, 420, 120-B IPC DLF Sector-29, Gurugram 1 1 of 6 ::: Downloaded on - 13-04-2023 01:07:14 ::: Neutral Citation No:=2023:PHHC:050028 CRM-M-11574-2023
3. Pe oner's counsel prays for bail by imposing any stringent condi ons. The pe oner contends that the pre-trial incarcera on would cause an irreversible injus ce to the pe oner and family.
4. While opposing the bail, the State contends that given the criminal past, the accused is likely to indulge in crime once released on bail.
REASONING:
5. In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 3 SCC 382, Hon'ble Supreme Court holds, [10] It is not in dispute and highlighted that the second respondent is a siDng Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquiFal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdic on of the Court etc.
6. In Paramjeet Singh v. State of Punjab, CRM-M 50243 of 2021, this court observed, While considering each bail pe on of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the an thesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Informa on Reports, wherein the bail pe oner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecu ons resul ng in acquiFal or discharge, or when Courts quashed the FIR; the prosecu on stands withdrawn, or prosecu on filed a closure report; cannot be included. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.
7. As per paragraph 12 of the bail pe on, the pe oner is in custody since 10.03.2022. As per para 1, the pe oner is mother of a child aged seven. Given above, and considering the penal provisions invoked viz-a-viz pre-trial custody, coupled with the prima facie analysis of the nature of allega ons, and the other factors peculiar to this case, there would be no jus fiability further pre-trial incarcera on at this stage, subject to the compliance of terms and condi ons men oned in this order. Thus, the previous criminal history of the pe oner is not being considered strictly at this stage as a factor for denying bail.
8. In Sanjay Chandra v. Central Bureau of Inves ga on, (2012) 1 SCC 40, Supreme Court holds, 2 2 of 6 ::: Downloaded on - 13-04-2023 01:07:15 ::: Neutral Citation No:=2023:PHHC:050028 CRM-M-11574-2023 [28] We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same me, we cannot lose sight of the fact that the inves ga ng agency has already completed inves ga on and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further inves ga on. We are of the view that the appellants are en tled to the grant of bail pending trial on stringent condi ons in order to ally the apprehension expressed by CBI.
9. 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, (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.
10. Without commen ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men oned above, 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.
11. In Mahidul Sheikh v. State of Haryana, Neutral Cita0on No: 2022:PHHC:003277, [Para 53], [Law Finder Doc Id # 1933969], this Court observed, [53]. The pragma c approach is that while gran ng bail with sure es, the "Court" and the "Arres ng Officer" should give a choice to the accused to either furnish surety bonds or to handover a fixed deposit, or direct electronic money transfer where such facility is available, or crea ng a lien over his bank account. The accused should also have a further op on to switch between the modes. The op on lies with the accused to choose between the sure es and deposits and not with the Court or the arres ng officer.
12. 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
(b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the sa sfac on of the concerned court, and in case of non-availability, any nearest Ilaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned court 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 court 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' 3 3 of 6 ::: Downloaded on - 13-04-2023 01:07:15 ::: Neutral Citation No:=2023:PHHC:050028 CRM-M-11574-2023 of the concerned district. Said fixed deposit may be made from any of the banks where the stake of the State is more than 50% or any of the well-established and stable private sector banks. The fixed deposit need not necessarily be made from the pe oner's account.
(c). Such court shall have a lien over the deposit 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). It shall be the total discre on of the pe oner to choose between surety bond and fixed deposit. It shall also be open for the pe oner to apply to the Inves gator or the concerned court to subs tute the fixed deposit with surety bonds and vice-versa.
(e). On the reverse page of personal bond, the pe oner shall men on her/his permanent address along with the phone number, preferably that number which is linked with the AADHAR, and e-mail (if any). In case of any change in the above par culars, the pe oner shall immediately and not later than 30 days from such modifica on, in mate about the change to the concerned police sta on and the concerned court.
(f). The pe oner is to also execute a bond for aFendance 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 also of this bail order.
13. 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.
14. Within fiVeen days from release from the prison, the pe oners shall forward on separate notarized affidavits, to the Inves gator/SHO and the complainant/vic m(s) the complete details of bank account numbers with addresses, fixed deposits, DEMAT account numbers, the current market value of jewelry, sovereign metals, all precious ar cles, held either individually or jointly, and cash-in-hand. If the pe oner fails to comply with this condi on, then on this ground alone, in that case, the bail might be cancelled, and the complainant may file any such applica on for the cancella on of bail, and State shall file the said applica on.
15. 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 4 4 of 6 ::: Downloaded on - 13-04-2023 01:07:15 ::: Neutral Citation No:=2023:PHHC:050028 CRM-M-11574-2023 earlier cau oned not to indulge in criminal ac vi es. Otherwise, the bail bonds shall remain in force throughout the trial and aVer that in Sec on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi ons.
16. The condi ons men oned above imposed by this Court are to endeavour that the accused tries to reform, does not repeat the offence and to provide an opportunity to the vic m to consider legal remedies for recovery of the amount. In Mohammed Zubair v. State of NCT of Delhi, 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." In Mohammed Zubair v. State of NCT of Delhi, 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."
17. 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.
18. 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 aVer 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.
19. 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.
20. In return for the protec on from incarcera on, the Court believes that the accused shall also reciprocate through desirable behavior.
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21. 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 soV copy, to the complainant and the vic m, without any delay. 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.
22. 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.
Pe00on allowed in aforesaid terms. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
11.04.2023
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
Neutral Citation No:=2023:PHHC:050028
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