Himachal Pradesh High Court
Manish Lal Shrivastava vs State Of Himachal Pradesh on 1 December, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) No. 1734 of 2020 Reserved on: 27th November, 2020 .
Date of Decision: 1st December, 2020
Manish Lal Shrivastava ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 YES.
For the petitioner: Mr. Romil Pathak, Advocate.
For the respondent: Mr. Nand Lal Thakur, Additional Advocate
General and Mr. Ram Lal Thakur, Assistant A.G.
Amicus Curiae: Mr. Bharat Barowalia, Advocate
COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE Anoop Chitkara, Judge.
The petitioner, a resident of Lucknow, is apprehending his imminent arrest on being arraigned as accused in an FIR on the allegations of conniving with a lady for opening a fictitious bank account, and receiving consideration for selling a fake marksheet, came up under Section 438 CrPC, seeking anticipatory bail.
2. Based on the complaint of Registrar of Arni University, Indora, District Kangra, HP, the police registered FIR No. 289 of 2018, dated 24.10.2018, under Sections 420, 468, 471, 201, 120B of Indian Penal Code, 1860, (IPC), in Police Station Indora, District Kangra, Himachal Pradesh, disclosing cognizable and non- bailable offences.
3. The allegations against the petitioner are that on 24 th October 2018, Shri Sangram Singh Guleria, Registrar of Arni University, visited Police Station, Indora filed a complaint that on 23.8.2018, one Gaurav Sharma, resident of Muzaffarnagar 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 2UP, came to the University for taking his Migration and Degree and he produced his DMC. When they tallied the DMC with their records, the same was found to be forged. After that, they detained said Gaurav Sharma and on inquiry, he disclosed .
that he has got this DMC from one Amit Kumar son of Shri Rishipal, resident of District Muzaffarnagar, UP, for payment of Rs.80,000/- (eighty thousand only). Subsequently, Gaurav Sharma telephonically called his father, who came to Indora along with the person, who had given the degree of BBA and DMC to Gaurav. The University people also detained Amit and produced them before the Police. On these allegations, the police registered the FIR mentioned above. Accused Gaurav Sharma in his interrogation disclosed that he had obtained this forged marks-sheet through Amit Kumar for consideration of Rs. 80,000/-. Police arrested Gaurav Sharma and Amit Kumar. During the investigation, accused Amit Kumar disclosed that he has obtained the forged marks sheet from Kuldeep Kumar and Abhishek Pal for Rs.
80,000/- and told Gaurav Sharma that he could obtain his degree and migration from Arni University. Similarly, third accused Abhishek Pal was also interrogated and he disclosed that he has received the DMC of BBA of 1st Semester to 6th Semester from Arvind Kumar and gave the same to Kuldeep Kumar on payment of Rs. 80,000/-, and Police also arrested Arvind Kumar on 24.10.2018. During the investigation, accused Arvind Kumar disclosed that he had met a lady named Shivani Arora @ Aruna Arora, who told him that she was Registrar in Arni University and the said lady had given the marks-sheet of Arni University to him after packing the same in an envelope, and he further handed it over to Abhishek Pal @ Deepak. He has also disclosed that Shivani Arora, was previously residing at Meerut and now residing at Jawalapur, Haridwar and she had opened an account in the name of Arni University in Bank of India, Haridwar. After that, on 22.11.2018, the Investigator obtained the details of the account from the Bank of India, Haridwar. A perusal of the account details reveals that Shivani Arora and M. Lal have opened an account in the name of Arni University on 10.07.2018 and Arvind had deposited initially Rs.10/- and thereafter Rs.49,990/- in that account on 9.8.2018. During the investigation, the details of this account were verified from Arni University and it was found that no account was opened by the Arni University in the Bank of India, Haridwar, and Arni University did not have employees in the names of Shivani Arora and M. Lal on its roll. After obtaining anticipatory bail, accused Shivani Arora associated in the ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 3 investigation on 3.2.2019 and disclosed that she was running a coaching Center at Haridwar, where she met with Dr. Manish Lal Srivastava, the petitioner herein, who told her that he has purchased Arni University. He also offered a job and also gave .
an appointment and authority letter to her. She further disclosed that Manish Lal Srivastava had opened an account in Bank of India, Haridwar, in the name of Arni University, in which, she was also put as a co-account holder and she has also put signatures on the documents of the Bank. She had also worked in the office, opened by M. Lal at Dehradun, who also took her to Arni University. Accused Shivani also produced her appointment and authority letter to the police.
4. Status report reveals that the accused has joined the investigation consequent upon the directions of this court on 13.10.2020, and the police have recovered a sum of Rs. 50,000/-, from him, which was the consideration for selling the fake marksheet and was deposited in the fake account, opened in connivance of Shivani Arora. The police have also taken the specimen signatures of the accused and sent the same for comparison.
5. While opposing any protection, Mr. Nand Lal Thakur, Ld. Additional Advocate General contends that the petitioner is not a resident of Himachal Pradesh, and it shall be very difficult to procure his presence, in case he defaults to appear. He further submits that if this Court grants bail, such order must be subject to condition that the petitioner furnishes such sureties who, in the event of default of appearance, are capable of producing him before Court to face trial.
6. Learned Counsel for the petitioner contends that the petitioner/accused does not have local sureties whom, in case the accused defaults from appearance, can be assessed as capable of producing him before the concerned Court. Ld. Counsel contends that in lieu of sureties, the petitioner is willing and ready to hand over a Fixed Deposit for Rs. One Lac, drawn in favour of any such person, as this Court directs.
7. Mr. Bharat Barowalia, Ld. Amicus Curiae contends that when it comes to the attestation of bonds, there is no distinction in bailable and non-bailable offences, and for the execution of bail bonds the legislature, while framing Section 445 of the Code of Criminal Procedure, 1973, used the words such "Court" or "Officer," and did not restrict the privilege to the Courts alone.
::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 4APPRECIATION OF EVIDENCE AND APPLICATION OF LAW ON FACTS:
8. 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 .
mention the cumulative effect of the variety of circumstances justifying 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 entitled to bail, if the Court concerned concludes that the prosecution 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 satisfaction for the need to release such persons on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application, and the Courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situation. In State of Rajasthan, Jaipur v. Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of the accused fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with us when considering the question of jail, and also the heinousness of the crime. The ration of Gudikanti Narasimhulu v. Public Prosecutor, High Court of Andhra Pradesh, (1978) 1 SCC 240, (Para 16), Supreme Court in Para 16, is that the delicate light of the law favors release unless countered by the negative criteria necessitating the rejection of bail. In Dataram Singh v. State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge, and though that discretion is unfettered, it must be exercised judiciously, in a humane manner and compassionately. The conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
9. Pre-trial incarceration needs justification depending upon the offense's heinous nature, terms of the sentence prescribed in the statute for such a crime, probability of the accused a flight risk or possibility of her fleeing from justice, hampering the investigation, criminal history, and probability of doing away with the victim or ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 5 witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and the State. However, while deciding bail applications, the Courts should discuss only the .
relevant evidence. The difference in the order of bail and final judgment is similar to a sketch and a painting. However, some sketches are in detail and paintings with a few strokes.
10. During interrogation, the accused has already handed over the alleged money paid by the complainant. The accused does not seem to be a flight risk. The allegations against the petitioner are based upon the statement of a co-accused and are not convincing enough to deny anticipatory bail. An analysis of the evidence against the petitioner also does not justify pre-trial incarceration of the accused, nor is it going to achieve any significant purpose, making out a case for bail.
11. The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional bench of Supreme Court held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions. The ratio of decision of Hon'ble Supreme Court in Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, is that while exercising powers under Section 438 of CrPC, the Court is duty-bound to strike a balance between the individual's right to personal freedom and the right of investigation of the police, to ensure an uninterrupted and unhampered investigation, and while exercising utmost restraint, the Court can impose conditions permissible under the law, countenancing the object of such restrictions.
APPLICATION OF LAW ON FIXED DEPOSIT INSTEAD OF BOND AMOUNT:
12. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, while dealing with an appeal against the order passed by High Court while granting anticipatory bail had directed him to deposit an amount of Rs. 1,00,00,000/- (one crore) in fixed deposit in the name of the complainant in any nationalized bank and to keep the FDR with the Investigating Officer, Hon'ble Supreme Court held as follows, ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 6 "[14]. Thus, in the case on hand, fixed deposit of Rs. 1,00,00,000/- for a period of six months in the name of the complainant and to keep the FDR with the investigating officer as a condition precedent for grant of anticipatory bail is .
evidently onerous and unreasonable. It must be remembered that the Court has not even come to the conclusion whether the allegations made are true or not which can only be ascertained after completion of trial. Certainly, in no words are we suggesting that the power to impose a condition of this nature is totally excluded, even in cases of cheating, electricity pilferage, white-collar crimes or chit fund scams etc. [15]. The words "any condition" used in the provision should not be regarded as conferring absolute power on a Court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed."
13. Grant of bail is subject to the accused promising the Court to attend the trial and comply with the conditions stipulated in the order. The accused accepts such a contract by furnishing bail bonds, and so do her sureties, undertaking to produce the accused before the concerned Court, in case she defaults to appear. Section 74 of the Indian Contract Act, 1972, provides compensation for breach of contract where a penalty is stipulated and clinching the issue, its illustration (c) reads as follows, "A' gives a recognizance binding him in a penalty of Rs. 500 to appear in Court on a certain day. He forfeits his recognizance. He is liable to pay the whole penalty."
14. In Pillappan @ Ravikumar v. State, 2018 LawSuit (Mad) 1475, Madras High Court observed, "[15] By virtue of Sec. 89 of the Code, the Court records the absence of the accused and issues a warrant to secure his presence. By his non appearance followed up with the act of the Court in issuing the non-bailable warrant for securing his presence, the accused has prima facie breached the condition of the bond. A bond is a contract between the accused and the State under which the accused has agreed to appear before the Court on the hearing dates and his sureties have assured the Court that they will ensure that the accused does not commit breach of the bond."
::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 715. It is beyond cavil that the sole purpose of a bond is to ensure the presence of the accused to attend the trial and surrender to undergo the sentence of imprisonment. The world is moving towards globalization. In rapidly changing times, people are .
traveling more and more, covering long distances. It exposes them to the risk of being arraigned as accused in locations far away from native places or places of residence. With unique identity details, monetary bail is even better. It would also address the unethical system of unscrupulous stock sureties, throwing them out of highly questionable and unethical practices.
16. Even the Legislature was aware of the menace of stock sureties and with a view to curb it, the Parliament, vide amendment of 2005, inserted S. 441-A CrPC, 1973, which reads as follows:
"441-A. Declaration by sureties. - Every person standing surety to an accused person for his release on bail, shall make a declaration before the Court as to the number of persons to whom he has stood surety including the accused, giving therein all the relevant particulars."
17. In its farsightedness, the legislature kept provision for the situations when an accused does not find any surety or none is ready to stand surety for her, by incorporating S. 445 of CrPC, 1973, which reads as under:
"S. 445. Deposit instead of recognisance. - When any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix in lieu of executing such bond."
18. If the legislative intention was only to use cash deposit then using the word "money" was sufficient and there was no requirement to use the word "Government promissory notes". Thus, the words "Government promissory notes" denote something other than money because money is currency notes and even its widest definition would again include currency notes. Therefore, in no case, the term money would exclude currency notes. So, what was the need for the legislature to specifically use the term "Government promissory notes". A promissory note is a financial instrument wherein the drawer promises to its drawee or the bearer, a ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 8 definite sum of money, either on-demand or at a specified future date. It is something other than money i.e., currency notes. Thus, the legislature never stopped fixed deposits to be taken as a promise of appearance before the concerned Court.
.
19. Section 269ST of Income Tax Act, 1961, and various other executive instructions issued by the Central Government reveal that the Country is moving from cash driven economy to a cashless economy. Thus, to ask an accused to deposit money under Section 445 CrPC would be against the spirit of the Legislative intention indicated by the successive Governments.
20. The world is passing through the revolution of information technology, with future unfolding before us and entering the internet of things. Albeit, this matter was also heard through video conference, however sadly due to compulsion of COVID- 19 pandemic and not on our initiative. The database of AADHAR, PAN, and Passports ensures individuals' identity, obsoleting the identification through sureties.
21. Siddhant Maniktala, in his paper "Relevance of sureties in criminal jurisprudence when every person in India has an identity", Supremo Amicus, Vol 17, writes, Aadhaar may replace surety bond as a means of getting bail because his identity has been established and with the personal data secured with the UIDAI, it will not be difficult to track down the accused in case of his fleeing from justice. It seems much important and a much crucial reform to liberalise bail laws in India. After the introduction of Aadhar, solely generated by UIDAI, (Unique Identification Authority of India) which is a unique identification proof of an individual, the need of surety for granting bail becomes debatable.
22. The right to life guaranteed by Article 21 of India's Constitution includes the right to live with dignity. Begging or pestering before someone to stand as a surety, comes at the cost of pride. In Maneka Gandhi v. Union of India, AIR 1978 SC 597, a seven-member bench of Supreme Court held that obviously, procedure cannot be arbitrary, unfair or unreasonable. (Para 43).
23. Way back in 1980, in Hussainara Khatoon v. Home Secretary, State of Bihar, (1980) 1 SCC 81, a three-member bench of Supreme Court holds, "4. ... If the court is satisfied on a consideration of the relevant factors that the accused has his ties in the community ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 9 and there is no substantial risk of non-appearance, the accused may, as far as possible, be released on his personal bond. Of course, if facts are brought to the notice of the court which go to show that having regard to the condition and background of the .
accused his previous record and the nature and circumstances of the offence, there may be a substantial risk of his non- appearance at the trial, as for example, where the accused is a notorious bad character or a confirmed criminal or the offence is serious (these examples are only by way of illustration), the court may not release the accused on his personal bond and may insist on bail with sureties...."
24. Earlier, in Moti Ram v. State of M.P., (1978) 4 SCC 47, Supreme Court, after referring to the provision for suspension of sentence of those convicted by trial Courts, holds,
27. The slippery aspect is dispelled when we understand the import of Section 389 (1) which reads:
389 (1): Pending any appeal by a convicted person the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
The Court of appeal may release a convict on his own bond without sureties. Surely, it cannot be that an under-trial is worse off than a convict or that the power of the court to release increases when the guilt is established. It is not the court's status but the applicant's guilt status that is germane.
That a guilty man may claim judicial liberation pro tempore without sureties while an under-trial cannot is a reductio ad absurdem.
25. Moti Ram is a judgement of one of the unique species containing the logical incantations dwelling on Section 441(2) and (3) while adverting to Section 389(1) of CrPC, and wealth is excavatable on the issue of furnishing cash bond.
JUDICIAL PRECEDENTS ON S. 445 CrPC:
a) In Rajballam Singh v. Emperor, AIR 1943 Patna 375, Patna High Court observed, [2] In this particular case and in others the District Magistrate has demanded a cash deposit as a condition to the release of the accused. That is not what the law contemplates or authorises.::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 10
b) In R. R. Chari v. Emperor, 1948 AIR(All) 238, Allahabad High Court observed, .
4. The language of S. 499, Criminal P.C. makes it perfectly clear that what that section contemplates is the furnishing of a personal bond by the accused person and a bond by one or more sufficient sureties. The accused as well as the sureties have, therefore, to execute only bonds which are sufficient in the mind of the amount which he might have fixed. This is also the view taken by the Patna High Court in 1943 AIR(Pat) 375 and I respectfully agree with it. Section 513 provides for a concession to an accused person who is unable to produce sureties. That section also makes it clear that the Magistrate is not bound to accept cash, but may permit an accused person to deposit a sum of money in lieu of executing a personal and giving surety of some persons. That section, however, does not authorise a demand of cash by a Magistrate. Under these circumstances, even though an offer may have been made in this case by the counsel for the applicant, that offer was made after the Magistrate apparently had made up his mind to demand cash security. It will not be covered by the terms of S. 513, Criminal P.C. and the demand of cash security in this case was clearly illegal."
c) In Niamat Khan v. Crown, 1949 LawSuit (Nag) 42, High Court of Nagpur observed,
4. ... Even under Section 513, Criminal P.C (1898) the accused could only be asked to deposit the amount of security instead of executing a bond. This provision is meant for the benefit of the person who is required to execute a bond in case where he may not be able to find a surety....
In State of Mysore v. H Venkatarama Kotaiyah, 1968 CrLJ 696, Mysore
d) High Court observed, [4] Section 513, Criminal P.C. states that when any person is required by any Court or officer to execute a bond, with or without sureties, such Court or officer, may, except in the case of a bond for good behaviour, permit him to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix, in lieu of executing such bond. According to this section, if the accused wants to deposit any sum of money, it is open to the Court to accept the same. But the law does not empower the Court to insist on cash deposit to be made by the accused.
e) In Krishna Kumar and others v. State of Karnataka, 1979 SCC OnLine ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 11 Kar 118,
3. It is also clear that on the Court requiring a person to execute a personal bond with sureties or without sureties, it is at the option of the accused persons to furnish cash deposit in lieu .
of the bond or sureties that the Court may make an order under Section 445. In the instant case, it is clear from the orders that the learned Magistrate has asked for securities in all the forms available under both the sections which is impermissible.
f) In Gokul Das v. The State of Assam, 1981 CrLJ 229, Gauhati High Court observed,
14. From the relevant provisions of the Criminal Procedure Code, there is no doubt that cash deposit in lieu of execution of a bond by the accused is an alternative system of granting bail and can be stated to be no less efficacious than granting bail of certain amount with or without surety or sureties of the like amount.
g) In Afsar Khan v. State by Girinagar Police, Bangalore, 1992 Cr.LJ 1676, Karnataka High Court observed, [7] A reading of the entire Chapter which deals with the provisions relating to bail, does not say that when a person is released on bail, the Court can also insist upon him to give cash security. After all, the object of granting bail is to see that the liberty of an individual is extended. Of course, when an accusation is made against a person, in the event of his release, it is the duty of the Court to see that the interest of the State and the public is safeguarded. For that purpose, the Court is empowered to insist upon appearance of the accused whenever so required either by the Police or Court either for investigation or to take up trial. During this period the Court can also warn the accused of his activities or movements in any way causing a fear or resulting in tampering with the prosecution evidence. While the Court exercises its discretion, whether it is under S. 437 or 438 or 439, it shall exercise the same properly and not in an arbitrary manner. The discretion exercised shall appear a just and reasonable one. It is true that no norms are prescribed to exercise the discretion. Merely because, norms are not prescribed for the Court to exercise discretion under Ss. 437, 438 or 439 that does not mean the discretion shall be left to the whims of the Court. Guiding principle shall be as indicated earlier with sound reasoning and in no way opposed to any other law. The Legislature has given this discretion to the Court keeping full faith in the system of administration of justice. While administering justice; it is the duty of the Court to see that any order to be passed or conditions to be imposed shall always be in the interest of both the accused and the State. The ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 12 conditions shall not be capricious. On the other hand, it shall be in the aid of giving effect to the very object behind the discretion.
.
h) In Parades Patra v. State of Orissa, 1994 (1) Crimes (HC) 109,
10. ...From this it can be reasonably inferred that it is not the mandate of the Code that the Magistrate should insist on cash security additional to personal bond with or without sureties.
i) In Charles Shobhraj v. State, 1996 (63) DLT 91, Delhi High Court observed, [6] But then, all said and done, a few things need to be noticed. The object of requiring an accused to give security for his appearance in Court is not to secure the payment of money to the State, for that is a secondary consideration, but to secure the presence of a person facing trial. Thus the primary consideration is the personal element of the surety or sureties concerned as the Court expects the surety to see that the accused appears on the date fixed and also that the surety will take steps for getting the accused arrested in case of any attempt on the part of the accused to abscond or to avoid attendance in Court. As observed by Alvorstone, Lord Chief Justice of England in King v. Porter, (1910) I KB 369, it is to the interest of the public that criminals should be brought to justice, and therefore that it should be made as difficult as possible for a criminal to abscond.
Responsibility is fixed on the sureties to see that such a person does not escape. A duty is thus cast on the Court, in accepting or rejecting a surety, to see the sureties are solvent and persons of sufficient vigilance to secure the appearance and prevent the absconding of the accused.
[7] The principal purpose of bail being to secure that the accused person will return for trial if he is released after arrest, this consideration is not lost sight of in the provisions of section 445 of the Code. It is only an enabling section, and provides that a Court or officer may permit a person to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix in lieu of executing a bond except in cases where the bond is for good behaviour. Surely, we cannot and must not lose sight of the word "may" which indicates that accepting the deposit of money in lieu of surety is left to the discretion of the Court and that consequently the acceptance of deposit of money is not obligatory and the relief is to be granted only where the Court thinks fit to substitute a cash security. While considering the question of fitness, principal purpose of bail as underlined above, would always remain a paramount consideration. In short thus besides the question as to whether the accused can find sureties or not, the Court shall have to keep in mind the question as to whether the prisoner is likely to abscond or not and while meditating on the last question the Court may take into account ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 13 various factors concerning him like the nature and circumstances of the offence charged, the weight of the evidence against him, length of his residence in the community, his family ties, employment, financial resources, character and mental .
condition, his record of convictions, reputation, character and his records of appearance at Court proceedings or flight to avoid prosecution or failure to appear at Court proceedings.
j) In Alluvdin v. Inspector of Police, 2001 CrLJ 2672, Madras High Court observed,
3. Section 441 Cr.P.C. reads that before any person is released on bail or released on his own bond, a bond for such sum of money as the Court thinks sufficient shall be executed by such person. Section 441 does not speak about deposit of any cash security. Only in certain contingencies, where the accused is unable to secure sureties for his release, he is permitted to deposit a sum of money or Government promissory Note as the Court may fix in lieu of executing such bond, under Section 445, Cr.P.C.
k) In Shokhista v. State, 2005 LawSuit (Del) 1316, Delhi High Court observed,
5. ...The accused is a foreign national and is not able to furnish a local surety. The same does not debar her from being admitted to bail. The provision of local surety is nowhere mentioned in the Code of Criminal Procedure and surety can be from any part of the country or without. In the present case, since the accused is a foreign national and is facing investigation under Sections 4, 5 and 8 of the I. T. P. Act and in view of the fact that the Petitioner is ready and willing to make a deposit in cash in lieu of the surety in addition to a personal bond, I am of the opinion that the ends of justice would be met in permitting her to do so. Consequently, I admit the Petitioner to bail on her furnishing a personal bond in the sum of Rs. 20,000/- and a cash deposit of the like amount in lieu of the surety to the satisfaction of the Trial Court. The Petitioner shall not leave the country without prior permission of the trial court and shall deposit her pass-port with the trial court.
l) In Maha Ahmad Yusuf v. State of U.P., 2015 (5) R.C.R.(Criminal) 13, Allahabad High Court observed,
6. .... The cash deposit is equally efficacious as other system in view of Section 445 Cr.P.C.
m) In Sakthivel v. The State, Crl.O.P.No.835 of 2015, Madras High Court observed,
15. Either under Section 438, or under Section 437, 439 of ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 14 Cr.P.C., it is not that the Courts have no power to impose such bail condition. But the condition should not be imposed for the sake of imposing condition. It must have some objective. It must be reasonable. It should not be oppressive in nature. It should .
be performable, executable. In imposing condition, the Court must take into account the individual's position, financial capacity and his role in the case.
n) In Navaneetha Krishnan v. State, 2015 (2) MadWN (Cri) 53, Madras High Court observed,
17. While granting bail, the Court can direct the accused to execute bail bond. As per Section 440 Cr.P.C., 1973 the bond amount should not be excessive. When a person so directed to execute the bond either with surety or without surety is not able to furnish the sureties, then under Section 445 Cr.P.C., 1973 he has the option to offer cash security. But even then, it must be a reasonable amount. It should not be an arbitrary, excessive amount. It should not be in the nature of deprivation of grant of bail by fixing a heavy amount as surety amount. If heavy amount is directed to be deposited as cash security, the bailee/accused will not be in a position to comply it. If heavy amount is demanded from the surety, then the bailor will not be forthcoming. And 'haves' will go out, while 'have nots' will remain in jail.
18. Reading sections 440, 441 and 445 Cr.P.C., 1973 together, it is clear that straightaway a Court cannot direct the accused to deposit cash security. First of all, the Court has to direct execution of bail bond by the sureties in case if the release is not on his own bond. Only in lieu of that deposit of cash security could be directed (see Section 445 Cr.P.C., 1973). Thus, the Court cannot straightaway direct the accused to deposit cash security.
In Sagayam @ Devasagayam v. State, 2017(3) MLJ (Cri) 134, Madras High
o) Court observed,
40. Under the Code, there is provision for offering Cash surety (See Section 445 Cr.P.C.). Even in fixing the cash surety, the amount should not be excessive. (See Section 440(1) Cr.P.C.). In the first instance, Court cannot demand Cash surety from the accused. The offer to make cash surety must come from the accused.
p) In Endua @ Manoj Moharana v. State, 2018(72) Orissa Cri. R.611, Orissa High Court observed,
9. The discretionary power exercised by the Magistrate or the Court, as the case may be, under sections 441 Cr.P.C., 1973 and ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 15 445 Cr.P.C., is mutually exclusive and not concurrent. On the Court requiring a person to execute a personal bond with sureties or without sureties, it is at the option of the accused to furnish cash deposit in lieu of executing such bond that the .
Court may make an order under section 445 of Cr.P.C., 1973
10. The order of bail should not be harsh and oppressive which would indirectly cause denial of bail thus depriving the person's individual liberty. While granting bail, insisting on good behaviour or prompt attendance, executing personal bond, further to safeguard his good behaviour and personal attendance may be supported by insisting upon additional sureties as the Court deems fit but insisting upon cash security is incorrect and indirectly results in denial of bail. The entire chapter of Cr.P.C. which deals with the provisions relating to bail nowhere says that when a person is released on bail, the Court can also insist upon him to give cash security. The power has to be exercised in a proper and judicious manner and not in an arbitrary, capricious or whimsical manner and the discretion exercised shall appear to be just and reasonable one. It is the duty of the Court to see that any order to be passed or conditions to be imposed while granting bail shall always be in the interest of both the accused and the State.
26. From the survey of the judicial precedents mentioned above, the following fundamental principles of law relating to the choice of the accused to furnish surety bonds or secure recognizance by depositing a sum of money or Government promissory notes, emerge:
a) The object of requiring an accused to give security for his appearance in Court is not to secure the payment of money to the State.
The principal purpose of bail is to secure that the accused person will return for trial if he is released after arrest, this consideration is not lost sight of in the provisions of section 445 of the Code. [Charles Shobhraj v.
State, 1996 (63) DLT 91, Para 6 & 7].
b) The discretionary power exercised by the Magistrate or the Court, as the case may be, under sections 441 Cr.P.C., 1973 and 445 Cr.P.C., is mutually exclusive and not concurrent. [Endua @ Manoj Moharana v. State, 2018(72) Orissa Cri. R.611, Para 9].
c) A reading of the entire chapter which deals with the provisions relating to bail, does not say that when a person is released on bail, the Court can also insist upon him to give cash security. [Afsar Khan v. State by Girinagar Police, Bangalore, 1992 Cr.LJ 1676 (7), Para 7].
d) Court cannot demand cash deposit as a condition of bail. [Rajballam Singh v. Emperor, AIR 1943 Patna 375, Para 2].
::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 16e) The offer to make cash surety must come from the accused. [Sagayam @ Devasagayam v. State, 2017(3) MLJ (Cri) 134, Para 40].
.
f) If the accused wants to deposit any sum of money, it is open to the Court to accept the same. [State of Mysore v. H Venkatarama Kotaiyah, 1968 CrLJ 696, Para 4].
g) The Magistrate is not bound to accept cash, but may permit an accused person to deposit a sum of money. [R. R. Chari v. Emperor, 1948 AIR(All) 238, Para 4].
h) Cash deposit in lieu of execution of a bond by the accused is an alternative system of granting bail and can be stated to be no less efficacious than granting bail of certain amount with or without surety or sureties of the like amount. [Gokul Das v. The State of Assam, 1981 CrLJ 229, Para 14].
i) The cash deposit is equally efficacious as other system in view of Section 445 CrPC. [Maha Ahmad Yusuf v. State of U.P., 2015 (5) R.C.R. (Criminal) 13, Para 6].
j) This provision is meant for the benefit of the person who is required to execute a bond in case where he may not be able to find a surety. [Niamat Khan v. Crown, 1949 LawSuit (Nag) 42, Para 4].
k) The accused is a foreign national and is not able to furnish a local surety. The same does not debar her from being admitted to bail. [Shokhista v. State, 2005 LawSuit (Del) 1316, Para 5].
l) It is not the mandate of the Code that the Magistrate should insist on cash security additional to personal bond with or without sureties. [Parades Patra v. State of Orissa, 1994 (1) Crimes (HC) 109, Para 10].
SUBSTITUTION OF BONDS AT ANY STAGE:
27. In Sajal Kumar Mitra v. State of Maharastra, 2011 CrLJ 2744, High Court of Bombay observed, [10] In my view, the learned Magistrates have power to release the accused on bail initially on furnishing cash bail and, thereafter, asking him to furnish solvent sureties in appropriate cases.
28. There is a dearth of comprehensive data to establish that when the accused fails to appear before the Court, then on how many occassions, the sureties were able to produce the accused in Courts. One illustration can be that accused belongs to or has ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 17 moved to the other end of the State, and for the surety, the cost of travel, search, apart from efforts to persuade her to attend the Court would not only overrun the amount of surety but would also consume considerable time. To get rid of this problem, if the .
surety amount is kept on the higher side, then it is likely to cause grave injustice to the poor. The sole role of sureties is to produce an absconding accused before the concerned Court. The purpose of a bond is not to enrich the State's coffers but to secure the accused's presence. No amount of money can justify the escape from the criminal justice system.
29. The Court and the Officers have formidable tasks of performing the tight rope locomotion by embarking on determination of the surety amount in consonance with the accused's monetary status. It should not be such as to precipitate the misery on the poor accused and deprive her of personal liberty despite being admitted to bail.
30. In Abhishek Kumar Singh v. State of Himachal Pradesh, Cr.MP(M) No. 1017 of 2020, this Court has already analyzed the scope of furnishing fixed deposits in lieu of cash, while granting bail under S. 439 CrPC to the accused with an option to give fixed deposit in place of surety.
31. The legal proposition that also needs an answer is that while arresting the accused in bailable offences and when an accused gets anticipatory bail, then can such accused offer a fixed deposit in place of surety bonds?
32. S. 445 CrPC is clear that it applies to directions to an accused to execute bonds by officers and Courts, with or without sureties. An officer directs an accused to execute bonds only when the Court issues Bailable Warrants or when such officer arrests an accused in a bailable offence, or arrests in a non-bailable offence and when such an accused is armed with an order of anticipatory bail. Section 445 CrPC further provides that Court or such officer may permit the accused to deposit a sum of money or Government promissory notes of such amount, in lieu of executing such bond. Thus, for the purpose of S. 445 CrPC, the Legislature does not distinct Officers from Courts.
33. In appeals and revisions, the higher Courts suspend the sentence of a convict under sections 389 and 397 CrPC on bail or on her own bond. While dealing with appeal against acquittal of an accused, the appellate Court has powers under section ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 18 390 CrPC to admit such an accused on bail. The provisions contained in Chapter XXXIII of CrPC as to bail and bonds apply to all bails and bonds, including Ss. 389, 390, and 397 CrPC. Thus, S. 445 CrPC applies to all bails, including granted under .
sections 389, 390, 397, 436, 437, 438, and 439 CrPC. The similarity between Sections 436 to 439 of the Code of Criminal Procedure is that all these relate to bails, be it by Officer empowered to release on bail in bailable offences or release under bails granted by Courts. Furthermore, S. 445 CrPC provides for the deposit of a sum of money or Government promissory notes in all bonds except the case of a bond for good behavior. S. 445. Deals with a deposit instead of recognizance, and when any person is required by any Court or officer to execute a bond with or without sureties, such Court or officer may permit her to deposit a sum of money or Government promissory notes to such amount as the Court or officer may fix instead of executing such bond.
34. An analysis of the above infers that for any officer arresting the accused and asking execution of bonds, and any Court granting bail or directing to furnish bonds, or while suspending the execution of sentence, it is permissible to give an alternative option to the accused to furnish personal bond, with an undertaking to attend the trial on each date, unless exempted, and subject to handing over a fixed deposit(s) for a certain amount.
35. We are already late in encouraging deposits in place of sureties. Fixed deposit in place of cash or sureties with an undertaking to appear in Court is likely to improve the possibility of the accused's attendance because she would be aware that her money is safe and accruing interest on FD, and in default, such money, as a whole or in part, shall certainly be forfeited. It is further likely to motivate her not to default even once. In contrast, the risk of losing money handed over by cash to stock sureties is huge. There is hardly any assurance or likelihood of the refund of money taken by a stock surety.
36. Given the advent of online identification, the pragmatic approach is that while granting bail with sureties, the "Court" and "Officer" should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to switch over to another, impliedly informing the accused of the existence of her right ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 19 under S. 445 of Code of Criminal Procedure, 1973. Choosing between sureties and deposits, accused is the Queen and let her be.
37. An Advocate is an officer of the Court and a vigilant watcher of the interest of .
her client. Owing allegiance to the Constitution of India and being a professional, it's her onerous duty to apprise the accused of the existence of the provisions of Section 445, as an alternative to the surety.
38. Given above, in the event of arrest, the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. One Lac only (INR 1,00,000/-), and shall either furnish two sureties of a similar amount, both of whom, in case of default from putting in an appearance, can produce the accused before the Court to the satisfaction of the Arresting Officer or the aforesaid personal bond and fixed deposit(s) for Rs. One Lac only (INR 1,00,000/-), made in favour of Judicial Magistrate, Dharamshala, District Kangra, H.P., from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account. The arresting officer shall give a time of ten working days to enable the accused to prepare a fixed deposit. Such a fixed deposit need not necessarily be made from the account of the petitioner. If such a fixed deposit is made on paper, then the original receipt shall be handed over to the arresting officer. If made online, then its printout, attested by any Advocate, and if possible countersigned by the accused, shall be filed, and the depositor shall get the online liquidation disabled. The petitioner or his Advocate shall inform at the earliest, either by e-mail or by post/courier, the concerned branch of the bank about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR number, that it has been tendered as surety. After that he shall hand over such proof along with endorsement to the Investigator. It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa. Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be endorsed/returned to the depositor(s). Such Officer shall have a lien over the deposits until discharged by substitution, and in case any ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 20 Court takes cognizance then such Court, upon which the investigator shall hand over the deposit to such Court, which shall have a lien over it up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or as the case may be.
.
39. The furnishing of bail bonds shall be deemed acceptance of all stipulations, terms, and conditions of this bail order:
a) The Attesting officer shall mention on the reverse page of personal bonds, the permanent address of the petitioner along with the phone number(s), WhatsApp number, email, and details of one personal bank account.
b) The petitioner shall join investigation as and when called by the Investigating officer or any superior officer. Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The petitioner shall not be subjected to third-degree methods, indecent language, inhuman treatment, etc.
c) The petitioner shall join and cooperate in the investigation, and failure to do so shall entitle the prosecution to seek cancellation of the anticipatory bail granted by the present order. (Kala Ram v. State of Punjab, 2018 (11) SCC
350).
d) The petitioner 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 of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
e) Once the trial begins, the petitioner shall not in any manner try to delay the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted.
f) There shall be a presumption of proper service to the petitioner 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 and may inform the Petitioner about such summons through SMS/ WhatsApp message/ E-Mail.
h) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable the accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable warrants through SMS/ WhatsApp message/ E-
Mail.
i) Finally, if the petitioner still fails to put in an appearance, then the ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 21 concerned Court may issue Non-Bailable warrants to procure the petitioner's presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper.
.
j) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, within thirty days from such modification, to the police station of this FIR, and the concerned Court, if such stage arises.
k) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may apply for cancellation of bail of the petitioner. Otherwise, the bail bonds shall continue to remain in force throughout the trial following the mandate of the Constitutional Bench in Sushila Aggarwal, (2020) 5 SCC 1, Para 92, wherein the Constitutional bench held that anticipatory bail can continue until the end of the trial; however, the Courts can limit the bail period's tenure if unique or peculiar features require.
40. The learned Counsel representing the accused and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order to the petitioner, in Hindi or English.
41. In case, the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even before 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 condition.
42. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.
43. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation in accordance with law.
44. The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in any other case(s) registered against the petitioner.
45. 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.
46. While deciding the propositions of law involved in this matter, I have considered my previous decision of Abhishek Kumar Singh v. State of Himachal ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP 22 Pradesh, Cr.MP(M) No. 1017 of 2020, which pertained to S. 439 CrPC. The present judgment is an upgraded version, is more comprehensive, up to date, covers Sections 436 to 439, 389, 390, and 397 CrPC, and henceforth there would be no point .
referring Abhishek Kumar Singh as a precedence.
47. I express my gratitude to counsel for the parties, Ld. Amicus Curiae Mr. Bharat Barowalia for excellent assistance, and to my Research Assistant Ms. Kalyani Acharya for outstanding research.
The petition stands allowed in the terms mentioned above.
(Anoop Chitkara), Judge.
December 01, 2020 (ps) ::: Downloaded on - 04/12/2020 20:16:10 :::HCHP