Punjab-Haryana High Court
Kulwinder Singh And Another vs State Of Punjab on 11 May, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
CRM-M-23818-2023 2023:PHHC:068263
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
106 CRM-M-23818-2023
Date of Decision: 11.05.2023
Kulwinder Singh and another ...Pe oners
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. L.S. Sidhu, Advocate for the pe oners.
Mr. Harsimar Singh Si a, DAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta on Sec ons
79 13.08.2020 Jaurkian, District 302, 341, 323, 34 IPC
Mansa (324 IPC added later on)
1. On being summoned by the trial court a er allowing the complainant's applica on vide order dated 09-03-2023, under sec on 319 CrPC, the pe oners have come up before this court under sec on 438 CrPC, with further relief that on their appearance before the trial court, they be released on bail.
2. Pe oner's counsel prays for bail by imposing any stringent condi ons.
Pe oner's counsel argued that the pre-trial incarcera on would cause an irreversible
injus ce to the pe oners and family.
3. State's counsel opposes the bail. The conten on on behalf of the complainant is that ini ally, because of an unfair inves ga on by the police, the pe oners were absolved, whereas their involvement in the crime stands substan ated by their summoning by the trial court.
REASONING:
4. The State had absolved the pe oners during inves ga on and the prosecu on agencies did not consider it appropriate to arraign the pe oners as an accused. Thus, a view favouring the pe oners exist, and on this ground alone, the pe oners are en tled to bail. Even a primafacie perusal of paragraph 6 of the bail pe on needs considera on for bail.
5. 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 JYOTI 2023.05.12 08:41 I attest to the accuracy and integrity of this order/judgment.
1CRM-M-23818-2023 2023:PHHC:068263 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) 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 illusory.
6. The possibility of the accused 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. 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.
7. 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 JYOTI 2023.05.12 08:41 I attest to the accuracy and integrity of this order/judgment.
2CRM-M-23818-2023 2023:PHHC:068263 irrespec ve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
8. In Mahidul Sheikh v. State of Haryana, Neutral Cita on 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.
9. Given above, provided the pe oners are not required in any other case, on appearance in the trial on the date fixed or any date before the next date, 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 trial Court. Before accep ng the surety, the concerned officer must sa sfy that if the accused fail to appear in court, then such surety can produce such accused before the court.
OR
(b) Pe oner to hand over to the concerned inves gator/SHO 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 favour of the 'Chief Judicial Magistrate' of the concerned district. The 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). In case of the launching of the prosecu on, the said fixed deposit be forwarded to the concerned court along with the police report/challan under 173 CrPC.
(d). 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.
(e). It shall be the discre on of the pe oner to choose between surety bonds and fixed deposits. 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.
(f). On the reverse page of personal bond, the pe oner shall men on her/his permanent address along with the phone number, preferably that numbers 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.
(g). 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 JYOTI 2023.05.12 08:41 I attest to the accuracy and integrity of this order/judgment.
3CRM-M-23818-2023 2023:PHHC:068263 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.
10. Given the nature of the allega ons and the other circumstances peculiar to this case, the pe oners 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.
11. Till the comple on of the trial, the pe oners shall not contact, call, text, message, remark, stare, stalk, make any gestures or express any unusual or inappropriate, verbal or otherwise objec onable behavior towards the vic m and vic m's family, either physically, or through phone call or any other social media, through any other mode, nor shall unnecessarily roam around the vic m's home.
12. Given the nature of the allega ons and the other circumstances peculiar to this case, the pe oners shall not enter the property, workplace, and the residence of the vic m and shall also not enter within a radius of one kilometer from the vic m's home ll the recording of the statements of all non-official and informal witnesses in the trial. This Court is imposing this condi on to rule out any a empt by the accused to incapacitate, influence, or cause any discomfort to the vic m. Reference be made to Vikram Singh v Central Bureau of Inves ga on, 2018 All SCR (Crl.) 458); and Aparna Bha v. State of Madhya Pradesh, 2021 SCC Online SC 230.
13. 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.
14. In return for the protec on from incarcera on, the Court believes that the accused shall also reciprocate through desirable behavior.
15. 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)
JUDGE
11.05.2023/Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
JYOTI
2023.05.12 08:41
I attest to the accuracy and
integrity of this order/judgment.
4