Himachal Pradesh High Court
Shubham Parmar vs State Of Himachal Pradesh on 28 May, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH
AT SHIMLA
Cr. MP(M) No.890 of 2024
Reserved on : 13.05.2024
Decided on: 28.05.2024.
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__________________________________________________________
Shubham Parmar ....Petitioner
Versus
State of Himachal Pradesh ....Respondent
Coram
Hon'ble Mr. Justice Ranjan Sharma, Judge
1 Whether approved for reporting? Yes.
For the petitioner : Mr. Ajay Sharma, Senior
Advocate with Mr. Atharv
r Sharma, Advocate.
For the respondent : Mr. Prashant Sen, Deputy
Advocate General.
ASI Trilochan Singh, I/O
Police Station Gagret, present
in person alongwith records.
Ranjan Sharma, Judge (Oral)
Petitioner [Shubham Parmar], has come up before this Court, seeking regular bail under Section 439 of the Code of Criminal Procedure [hereinafter referred to as 'Cr.P.C.'], originating from FIR No 135 of 2019, dated 16.11.2019, registered at Police Station 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes ::: Downloaded on - 07/06/2024 20:33:17 :::CIS -2- Gagret, Tehsil Ghanari, Una, District Una [H.P.], under Sections 376, 354, 354C, 420, 506, 384, 498A, 120-B, 201 of the Indian Penal Code [hereinafter referred .
to as 'IPC'] and Section 66-C, 67-A of Information Technology Act, 2002, whereby, after issuance of NBW's and on surrender by the petitioner on 22.04.2024, the prayer for cancellation of NBW's and for enlarging him on bail has been rejected by the Learned Trail Court on 23.04.2024, Annexure P-3 [referred to as the Impugned Orders].
FACTUAL MATRIX
2. The case set up by Mr. Ajay Sharma, Learned Senior Counsel assisted by Mr. Atharv Sharma, learned counsel is that the complainant-victim [X] made a complaint under Section 156 (3) of Cr.P.C, seeking directions to SHO, Police Station Gagret, District Una for registration of FIR on 01.11.2019 [Annexure P-1].
Consequently, the matter was investigated by the police leading to registration of FIR No.135 of 2019, ::: Downloaded on - 07/06/2024 20:33:17 :::CIS -3- dated 16.11.2019, against the bail petitioner.
2(i). Case set up by Mr. Ajay Sharma, Learned Senior Counsel, is that on 1.11.2019 [Annexure P-1], .
complainant-victim [X] submitted a complaint leading to the registration of FIR on 16.11.2019, whereby, the case of the prosecution is that the bail petitioner [Shubham Parmar] and the complainant-victim [X] were in talking terms since 2018. It is averred that in September, 2018, the relations were developed inter se, the bail petitioner and complainant-victim [X]. It is averred that on 10.02.2019, the bail petitioner as well as complainant-victim [X], consensually went to McLeodganj and stayed in Hotel Naddi Hills, in the same room, wherein both the parties had committed coitus inter se. It is further averred that during the said night, the bail petitioner has allegedly made a MMS of the complainant-victim [X] and then uploaded this MMS on Facebook. In this background, the FIR was registered against the bail petitioner and after ::: Downloaded on - 07/06/2024 20:33:17 :::CIS -4- registration of FIR on 16.11.2019, the bail petitioner was arrested on 13.02.2020.
2(ii). Learned Senior Counsel Mr. Ajay Sharma, .
Learned Senior Counsel, submits that the bail petitioner and the complainant-victim [X], married each other, in Baglamukhi, Temple Gagret, as per Hindu customs and their marriage was duly registered on 1.6.2019 [Annexure P-5] with the Sub-Divisional Magistrate, Amb, District Una [H.P.].
2(iii). Mr. Ajay Sharma, Learned Senior Counsel, submits that after his arrest on 13.02.2020, the bail petitioner moved bail application i.e. Cr.MP (M) No 244 of 2020, before this Court, which was allowed on 02.03.2020 [Annexure P-2]. While granting bail, this Court inserted certain conditions in Para 14(a) to 14(l) in aforesaid bail order, which are referred to in later part of this judgment. It is further averred that after grant of bail on 02.03.2020 [Annexure P-2], as referred to above, the bail petitioner moved a Cr.MMO ::: Downloaded on - 07/06/2024 20:33:17 :::CIS -5- No.541 of 2023, seeking quashing of FIR but, the aforesaid petition under Section 482 of Cr.P.C. was dismissed by this Court.
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2(iv). Learned Senior Counsel Mr. Ajay Sharma, further submits that consequent upon the grant of bail by this Court on 02.03.2020 [Annexure P-2], the bail petitioner furnished bail bond and surety bond, undertaking to appear before the Learned Trial Court as and when required from time to time. It is averred that the bail petitioner had appeared before the Learned Trial Court on various dates, from time to time up to 03.10.2020. It is averred that the bail petitioner was a qualified Assistant Engineer and since the pendency of trial could not render him unemployed, therefore, the bail petitioner in order to eak out a living, decided to join an assignment with M/s K. Steamship Agencies Pvt. Ltd and due to compelling circumstances, the petitioner accepted the aforesaid assignment, on the deep seas [abroad] ::: Downloaded on - 07/06/2024 20:33:17 :::CIS -6- from 06.01.2023 to 05.05.2024. It is averred that Learned Trial Court fixed the matter on 17.11.2023, on 4.12.2023, on 08.01.2024 and on 12.01.2024, but .
since the bail petitioner had gone abroad, therefore, the bail petitioner moved application(s) for exemption from appearance on aforesaid dates.
2(v). It is averred that the matter came up before Learned Sessions Judge-I, Una, on 24.1.2024, but since the bail petitioner was already abroad on the ship, therefore, the bail petitioner requested the Learned Counsel to move an appropriate application for exemption. On directions of the bail petitioner the requisite application was filed but the Learned Trial Court, rejected the application for exemption on 24.01.2024 and issued Non-Bailable Warrants on 11.03.2024, for ensuring the presence of the bail petitioner.
2(vi). In the instant bail petition, it is averred that though the assignment on the ship abroad ::: Downloaded on - 07/06/2024 20:33:17 :::CIS -7- was for the period from 06.01.2023 to 05.05.2024 but on acquiring knowledge about the issuance of NBW's, the bail petitioner requested the Shipping .
Company for relieving him by shortening/curtailing his service tenure which was acceded to. Accordingly, the petitioner surrendered before the Learned Trial Court on 22.04.2024 and on surrender, the petitioner moved an application on 22.04.2024 itself under Section 70(2)/Section 439 Cr.P.C. for cancellation of NBWs with prayer for bail, but Learned Trial Court has passed an order on 23.04.2024 [Annexure P-3], rejecting the application filed under Section 70(2) of Cr.P.C. for cancellation of NBW's and for enlarging the petitioner on fresh bail, by ignoring the material on record and statutory provisions and the mandate of law.
The bail petitioner being in custody, since 22.04.2024, has come up before this Court, seeking quashing of the Impugned Order dated 23.04.2024 ::: Downloaded on - 07/06/2024 20:33:17 :::CIS -8- [Annexure P-3], with the prayer for releasing him on bail.
STAND OF STATE AUTHORITIES .
3. The aforesaid petition was listed before this Court on 30.04.2024, when, the respondents were directed to file the reply. The matte was then listed on 07.05.2024 and then on 13.05.2024 when, the Status Report dated 12.05.2024, furnished to this Court by SHO, Police Station Gagret, District Una, was taken on record and thereafter, the matter was finally heard by this Court.
4. A perusal of the Status Report dated 12.05.2024, narrates the sequence of events and refers to the complaint submitted by complainant-
victim [X], leading to registration of FIR on 16.11.2019.
Status Report further reveals that after registration of FIR, the bail petitioner was made to undergo medical examination in December, 2019 before the Community Health Centre, Gagret, District Una. Status ::: Downloaded on - 07/06/2024 20:33:17 :::CIS -9- Report reveals that police completed the investigation and submitted the Final Police Report/Challan before Learned Judicial Magistrate, First Class-II, Amb, District .
Una, on 22.03.2020. Thereafter Supplementary Challan was presented before Trial Court on 06.08.2020. It is averred that the mobiles of bail petitioner and complainant-victim [X] were taken in possession and sent to RSFL Dharamshala, for examination/analysis.
4(i). The Status Report further reveals that no other FIR or criminal case has been registered against the bail petitioner, but since the petitioner has violated the conditions of bail bond, therefore, Learned Trial Court directed the arrest of the bail petitioner by sending him to judicial custody, even though he had surrendered before the Court on 22.04.2024 and the accordingly, the application filed by bail petitioner under Section 70(2)/439 CrPC for cancellation of NBW's and for releasing him on bail was rejected on 23.04.2024 [Annexure P-3].
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In the above background, the Learned State Counsel has prayed for upholding the orders dated 23.04.2024 [Annexure P-3], passed by the Trial .
Court, as referred to above.
5. Heard Mr. Ajay Sharma, Senior Advocate with Mr. Atharv Sharma, Advocate and Mr. Prashant Sen, Learned Deputy Advocate General for the State Authorities.
6. Before proceeding further in the matter, it is necessary to have a recap of statutory provisions of Section 70, Section 81 and Section 439 of Cr.P.C., as under:-
"SECTION 70 Form of warrant of arrest and duration.--
(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed by the presiding officer of such Court and shall bear the seal of the Court.
(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed.
SECTION 81 Procedure by Magistrate before whom such person arrested is brought.--
(1) The Executive Magistrate or District Superintendent of Police or Commissioner of Police shall, if ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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the person arrested appears to be the person intended by the Court which issued the warrant, direct his removal in custody to such Court:
Provided that, if the offence is bailable, and such person is ready and willing to give .
bail to the satisfaction of such Magistrate, District Superintendent or Commissioner, or a direction has been endorsed under section 71 on the warrant and such person is ready and willing to give the security required by such direction, the Magistrate, District Superintendent or Commissioner shall take such bail or security, as the case may be, and forward the bond, to the Court which issued the warrant:
Provided further that if the offence is a non-bailable one, it shall be lawful for the Chief Judicial Magistrate (subject to the provisions of section 437), or the Sessions Judge, of the district in which the arrest is r made on consideration of the information and the documents referred to in sub-section (2) of section 78, to release such person on bail.
(2) Nothing in this section shall be deemed to prevent a police officer from taking security under section 71.
Section 439 Special powers of High Court or Court of Session regarding bail.--
(1) A High Court or Court of Session may direct,--
(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in sub-section (3) of section 437, may impose any condition which it considers necessary for the purposes mentioned in that sub-section;
(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified:::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to .
the Public Prosecutor unless it is, for reasons to be recorded in writing, of opinion that it is not practicable to give such notice.
Provided further that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence triable under sub-section (3) of section 376 or section 376AB or section 376DA or section 376DB of the Indian Penal Code (45 of 1860), give notice of the application for bail to the Public Prosecutor within a period of fifteen days from the date of receipt of the notice of such application.
(1A) The presence of the informant or any person authorized by him shall be obligatory at the time of hearing of the application for bail to the person under sub-section (3) of section 376 or section 376AB or section 376DA or section DB of the Indian Penal Code (45 of 1860).] (2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody.
7. Notably, the claim of the suspect-accused for pre-arrest or post arrest bail-regular bail is to be examined/tested within the parameters prescribed of the Code of Criminal Procedure and also the broad para-meters mandated by the Hon'ble Supreme Court ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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regulating grant of bail in Gurbaksh Singh Sibbia versus State of Punjab (1980) 2 SCC 565, Ram Govind Upadhyay versus Sudarshan Singh (2002) .
3 SCC 598 ; Kalyan Chandra Sarkar versus Rajesh Ranjan, (2004) 7 SCC 528 ; Prasanta Kumar Sarkar versus Ashish Chatterjee, (2010) 14 SCC 496;
reiterated in P. Chidambaram versus Directorate of Enforcement, (2019) 9 SCC 24, mandating that the bail {anticipatory or regular} is to be granted where the case is frivolous or groundless and no prima facie or reasonable grounds exists which lead to believe or point out towards accusation ; and these parameters for regular bail have been reiterated in Sushila Aggarwal versus State-NCT Delhi, (2020) 5 SCC 01.
7(i). While dealing with the case for grant of bail, the three judges bench of Hon'ble Supreme Court, after reiterating the broad parameters, has held in Deepak Yadav versus State of Uttar Pradesh, ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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(2022) 8 SCC 559, in Para 25 that the nature of crime has a huge relevancy, while considering the claim for bail.
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7(ii). In the case of Ansar Ahmad versus State of Uttar Pradesh, 2023 SCC Online SC 974, the Hon'ble Supreme Court had expanded the horizon of the broad parameters, which are to be primarily taken into account, for considering the claim for regular bail or anticipatory bail as under:
11. Mr. R. Basant, the learned Senior Counsel appearing for one of the private respondents that the Court while granting bail is not required to give detailed reasons touching the merits or de-merits of the prosecution case as any such observation made by the Court in a bail matter can unwittingly cause prejudice to the prosecution or the accused at a later stage. The settled proposition of law, in our considered opinion, is that the order granting bail should reflect the judicial application of mind taking into consideration the well-known parameters including:
(i) The nature of the accusation weighing in the gravity and severity of the offence;
(ii) The severity of punishment;::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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(iii) The position or status of the accused, i.e. whether the accused can exercise influence on the victim and the witnesses or not;
(iv) Likelihood of accused to approach or try to approach the victims/ witnesses;
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(v) Likelihood of accused absconding from proceedings;
(vi) Possibility of accused tampering with evidence;
(vii) Obstructing or attempting to obstruct the due course of justice;
(viii) Possibility of repetition of offence if left out on bail;
(ix) The prima facie satisfaction of the court in support of the charge including frivolity of the charge; r (x) The different and distinct facts of each case and nature of substantive and corroborative evidence.
12. We hasten to add that there can be several other relevant factors which, depending upon the peculiar facts and circumstances of a case, would be required to be kept in mind while granting or refusing bail to an accused. It may be difficult to illustrate all such circumstances, for there cannot be any straight jacket formula for exercising the discretionary jurisdiction vested in a Court under Sections 438 and 439 respectively of the Cr.PC, as the case may be.
8. In normal parlance, the principle of law is that bail is a rule and jail is an exception. However, ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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this Court is conscious of the fact in a case under Section 438, the discretion has to be exercised sparingly when, grant of pre-arrest bail is to be exercised, being .
an exception. It is trite law that while considering the prayer for bail {pre-arrest bail or regular bail], the formation of prima facie opinion is to gathered as to whether reasonable grounds exist pointing towards accusation or whether the accusation is frivolous and groundless with the object of either injuring or humiliating or where a person has falsely been roped in the crime needs to be tested in the background of the self-imposed restrains or the broad parameters mandated by law, as referred to herein above.
9. This Court is conscious of the fact that as per the mandate of law, in Criminal Appeal No 3840 of 2023, titled as Saumya Churasia versus Directorate of Enforcement, decided on 14.12.2023, while considering the prayer for bail, though a Court ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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is not required to weigh the evidence collected by the Investigating Agency meticulously, nonetheless, the Court should keep in mind the nature of accusation, .
the nature of evidence collected in support thereof, the severity of punishment prescribed for alleged offences, the character of the accused, the circumstances which are peculiar to the accused, the reasonable possibility of securing the presence of the accused during trial, reasonable apprehension of the witnesses being tampered with, the large interests of the public /state.
In this background, while testing the claim for bail, the Court is required to form a prima-
facie opinion in the context of the broad-parameters referred to above, without delving into the evidence on merits, as it may tend to prejudice the rights of the accused as well as the prosecution.
ANALYSIS OF CLAIM IN INSTANT CASE
10. In entirety of the facts and circumstances ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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as borne out from the material on record, including the Status Report furnished by the State Authorities, the Statutory Provisions and the mandate of law, as .
referred to above, the prayer of the bail petitioner, [Shubham Parmar] for enlarging him on bail, needs to be accepted and the Impugned Orders dated 23.04.2024 [Annexure P-3], is quashed and set-aside, for the following reasons:-
10(i). The material on record does not point out towards the prima facie accusation against the bail petitioner in view of the findings recorded, by the Co-ordinate Bench of this Court, in the Earlier bail application i.e. Cr.MP(M) No 244 of 2020, dated 02.03.2020 [Annexure P-2] and Para 7 thereof, which reads as under:-
"7. As per the victim's own version while making statement under Section 164 Cr.P.C. on Nov. 27, 2019, she specifically stated that she was in relationship with accused for the last one month, hence petitioner has prima facie made out a case for bail for offence under Section 376 IPC."
10(ii). A perusal of FIR and Statement of the ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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Complainant-Victim [X] under Section 164 Cr PC, reveals that the bail petitioner and complainant-victim [X] were having consensual relations since September .
2018 and on 10.02.2019 when they stayed together in McLeodganj at Hotel Naddi Hills and both had coitus inter-se then, in these circumstances, the prima facie accusation does not exist(s) against the bail petitioner. Even the Status Report indicates that the bail petitioner and Complainant-Victim [X] solemnized marriage in accordance with the Hindu customs on 9.05.2019 [Annexure P-5] and their marriage was registered by both of them on 22.05.2019 under the Himachal Pradesh Registration of Marriage Act, 1996 and the Rules framed thereunder, which is clear from the Marriage Certificate issued on 1.6.2019 [Annexure P-5]. Even, a perusal of Annexure P-4 indicates that the victim-complainant has filed a petition for dissolution of marriage under Section 13 of the Hindu Marriage Act before Family Court ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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on 25.10.2021 [Annexure P-4], with the averments that the bail petitioner and complainant-victim [X] had solemnized marriage on 9.5.2019 at Mata Bagla .
Baglamukhi, Temple Gagret. In these circumstances, neither any prima facie case is made out nor any reasonable grounds exist to believe the accusation, against the bail petitioner and therefore, the petitioner was granted bail by the Coordinate Bench of this Court on 2.3.2020 [Annexure P-2].
10(iii). Consequent upon the registration of FIR on 16.11.2019 and the resultant investigation by the police, the Challan/Final Report was filed on 23.01.2020 and a Supplementary Challan was filed on 06.08.2020 but, the matter referred for trial, by Learned Trial Court [Additional Sessions Judge-I, Una, i.e. Trial Court] as referred to above. Records reveal that bail petitioner participated in proceedings before Learned Trial Court after grant of regular bail on 2.3.2020 [Annexure P-2] till 03.10.2023. However, ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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since the bail petitioner is a qualified Assistant Engineer and was facing financial hardships, being unemployed, and was unable to make both ends meet, therefore, .
the bail petitioner went accepted an assignment in deep seas with M/s K Steamship Agencies Pvt.
Ltd from 06.11.2023 to 05.05.2024 and though the matter was listed before Trial Court on various dates i.e. 17.11.2023, 4.12.2023, 8.1.2024 and 12.1.2024 and but since the petitioner was in the deep seas [abroad] therefore, the exemption(s) was granted. The matter was again taken up on 24.1.2024, when, the counsel for bail petitioner moved an application for exemption but the Trial Court rejected the application for exemption and directed the issuance of NBWs so as to ensure the presence of the bail petitioner for 11.03.2024.
However, after coming to know of the issuance of the NBWs, the bail petitioner requested the concerned company i.e. M/s K Steamship Agencies ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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Pvt. Ltd. to curtail/shorten his tenure assignment and to relieve him pre-maturely so as to enable him to appear before the Learned Trial Court.
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Accordingly, on returning to India, the bail petitioner surrendered before the Trial Court on 22.04.2024 and on surrender, the bail petitioner moved a Bail Application No 140 of 2024 dated 22.04.2024, praying for cancellation of NBWs under Section 70(2) of Cr.P.C. with the further prayer for releasing him on regular bail under Section 439 of Cr.P.C. but this bail application/request was rejected by the Learned Trial Court on 23.04.2024 [Annexure P-3]. The copy of the Impugned Orders passed by the Learned Trial Court on 23.04.2024 [Annexure P-3], reads as under:-
"5. The applicant by virtue of this application is seeking cancellation of NBW and his release on fresh bail with the plea that he could not appear before the court on 24.1.2024 as he had boarded Cargo ship and was in deep sea and could not contact his counsel, as such, for his non-appearance, court had issued NBW. The perusal of case shows that applicant Shubham Parmar was granted bail by the Hon'ble High Court of H.P vide order dt. 2.3.2020. The Hon'ble High Court while granting bail had directed the applicant to appear before the court and further to ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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attend the trial. In clause No.(l) it is stipulated that:-
" in case accused does not turn up before the trial court, the trial court may issue NBW and send the accused to judicial custody for the period for which .
presence of accused cannot be dispensed with. If accused violated any other condition stipulated in the bail order, then court may direct the Public Prosecutor to file a cancellation application and it shall be lawful and permissible for the trial court to cancel the bail.
6. The perusal of file further shows that on
24.1.2024, Ld. Defence counsel appearing the applicant filed exemption application on behalf of applicant from personal appearance with the plea that as per e-mail received, applicant was in search of job and had boarded Cargo ship and is in deep sea. This court r vide order dt. 24.1.2024 had dismissed the said application of the applicant and ordered to secure the presence of applicant through NBW for 11.3.2024. The perusal of file further shows that applicant Shubham Parmar appeared before this court for the last time on 3.10.2023 and thereafter did not appear before the court and this court time and again on applications filed by ld. Defence counsel is exempting his appearance vide order dt. 17.11.2023, 4.12.2023, 8.1.2024 and 12.1.2024. Perusal of exemption applications filed on behalf of applicant shows that applicant had not informed in his earlier exemption applications the fact of going abroad.
Accused for the first time by moving application on dt. 24.1.2024 had intimated this court that he was in search of job and had boarded a Cargo ship and is in deep sea. Thus applicant has left the country either without informing or obtaining permission from the court. The trial of the case has already been delayed due to absence of applicant Shubham Parmar.
7. Keeping in view the conduct of applicant and directions so issued by the Hon'ble High court while granting bail to him vide order ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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dt. 2.3.2020, I am of the considered view that presence of applicant cannot be dispensed with and to secure his presence to face the trial, he is required to be sent into judicial custody. Hence, application filed by him being meritless is dismissed. Be tagged after due completion.
.
Sd/-
Announced Addl.Sessions Judge-I, 23.04.2024 Una, District Una, (H.P)"
11. Mr Ajay Sharma, Learned Senior Counsel contented that the Impugned Orders dated 23.04.2024 [Annexure P-3] passed by the Learned Trial Court, in sending him to judicial custody despite surrender on 22.04.2024 and in rejecting his bail application on 23.04.2024 [Annexure P-3] is contrary to the material on record and the aforesaid order is not in spirit of law and is factually and legally untenable.
11(i). Once, the bail petitioner was on deep seas abroad during the period from 06.11.2023 to 05.05.2024 [which is not denied by State Authorities in the Status Report dated 12.05.2024] and after returning to India, once the petitioner had surrendered on 22.4.2024 and moved an application under Section 70(2) of Cr PC for cancelling of NBWs 22.04.2024 ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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then, the Learned Trial Court could neither send the petitioner to judicial custody on 22.04.2024 nor could not reject the bail on 23.04.2024 [Annexure P-3], .
by invoking Clause 14(l) of the earlier bail order, which reads as under:-
"14. This Court is granting the bail, subject to the conditions mentioned herein. The petitioner/ accused undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner/ accused is acceptance of all such conditions:
a) The petitioner shall appear before the Court which issues the summons or warrants, and shall furnish fresh bail bonds to the r satisfaction of such Court, if such Court directs to do so.
b) The petitioner undertakes to attend the trial.
c) The petitioner shall join the investigation as and when called by the Investigating Officer. However, whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the accused shall not be called before 9 AM and shall be let off before 5 PM.
d) The petitioner shall co-operate in the investigation.
e) The petitioner shall not hamper the investigation.
f) The petitioner undertakes not to threaten or browbeat or use any pressure tactics on the victims, complainant, and witnesses,
g) The petitioner shall neither influence nor try to control the investigating officer, in any manner whatsoever.
h) The petitioner undertakes not to make any inducement threat or promise, directly ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence.
i) In case the petitioner commits any offence .
prescribing the sentence of imprisonment of more than seven years, within thirty days of knowledge of such FIR, the petitioner shall intimate SHO of the present police station, with all the details of the present FIR as well as the new FIR. In such a situation, it shall be open for the State to apply to this Court for cancellation of this bail, if it deems fit and proper.
j) The Petitioner shall not contact the victim personally or through any other medium whatsoever. He would also avoid to enter the campus of her studies and would not enter within a radius of five kilometers of the residence of the victim, measuring r from the shortest route, until the recording of the statement of all witnesses, except Police officials, during trial. However irrespective of these conditions, the accused is permitted to visit his Lawyers, Courts and Hospitals. The petitioner shall inform the SHO of above-mentioned Police Station about the address where he would be residing. After the recording of the statements of the aforesaid witnesses, this condition shall automatically come to an end. In case of emergency, whenever, the accused is required to enter within the five kilometer radius of her residence, then he shall take permission of the SHO/I.O. or any superior Officer of the concerned Police Station or of Pradhan/Up Pradhan/ Member of Panchayat/Municipal Committee, in whose jurisdiction, the residence of the victim, falls. But in no situation, he shall stay at this place for more than 24 hours at a stretch. This condition is being laid so that no trauma is caused to the victim, at least till the time of recording of the statement of the victim in Court. Such a condition is neither arbitrary nor unreasonable and the only purpose is that ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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the victim is unable to come face to face with the accused and also has been imposed with a view that the accused is unable to influence the victim. In case the petitioner needs modification of this condition, then he may apply to this Court, supported with written permission from the victim, .
obtained through Pradhan, Up Pradhan, or Ward Member of the Panchayat, where the victim resides. It is clarified that in case the petitioner violates this condition then he will be liable to cancel his bail.
k) Within 30 days from today, the petitioner shall sell, or surrender, all firearms along with ammunition, and arms licenses, if any, to the authority which had given such permission.
l) Apart from above, in case the Petitioner does not turn up before the Trial Court, then the trial Court may issue Non- Bailable warrants and send the petitioner r to the Judicial Custody for the period for which the presence of the petitioner cannot be dispensed with. If the petitioner violates any other condition(s) as stipulated in this bail order, then the Trial Court may direct the Public Prosecutor to file a cancellation application before it and it shall be lawful and permissible for the Trial Court to cancel the bail.
11(ii). The Impugned Order dated 23.4.2024, passed by the Learned Trial Court by invoking the condition No 14 (l) of the Earlier Bail Order dated 3.3.2020 [Annexure P-2], suffers from infirmities, for the reason, that firstly, this condition was inapplicable ;
and secondly, even the pre-conditions for applicability of condition No14 (l) were not satisfied ; and thirdly, ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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the Trial Court could not apply condition No 14 (l) in a casual manner and lastly, this condition could only apply in case, the Trial Court had disclosed .
to the petitioner the period for which the presence of the petitioner was necessitated or could not have been dispensed with and "inabsence of any material that the presence of petitioner was necessary and could not be dispensed with" but once on acquiring knowledge about the issuance of NBWs, the petitioner surrendered voluntarily on 22.4.2024 and applied for cancellation of NBW's then, the action of the Trial Court in sending the petitioner to judicial custody and in denying bail is dehors the mandate and the object of granting regular bail on 2.3.2020 and is contrary to the true spirit behind condition No 14
(l) of the earlier bail order supra, and therefore, the impugned order cannot satisfy the test of judicial scrutiny.
11(iii). The Impugned Order dated 23.04.2024 ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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sending the petitioner to judicial custody, despite surrender on 22.04.2024 and in rejecting bail on 23.04.2024, by invoking Condition No 14 (l) of the .
Earlier Bail Order dated 02.03.2020 [Annexure P-2], merely due to the non-appearance on 24.01.2024 and resultant issuance of NBW's for 11.03.2024; amounts to jeopardizing the personal liberty, the dignity and the right of the petitioner to eke out a living for himself and his family, being an assignment in the deep seas-abroad. Mere pendency of trial or non-
appearance [which was informed of and was bonafide] can neither operate as a bar-restriction-embargo nor can it form the basis for curtailing or depriving an accused of fundamental right to earn livelihood for himself and family under Article 21 of the Constitution of India.
11(iv). The condition No.14 (l) in the Impugned Order dated 23.04.2024 [Annexure P-3] could not be interpreted in as onerous manner, so as to render ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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the petitioner-accused unemployed and to make him to wait till the outcome of the trial. Any such action certainty tantamounts to depriving or curtailing the .
fundamental right of an accused to earn livelihood pending or till the conclusion of the trial shall defeat the object of bail granted earlier on 2.3.2020 and even in these proceedings.
11(v). The Impugned Order Annexure P-3, sending the petitioner to Judicial Custody, on surrender on 22.4.2024, shall amount to imposing punishment before trial. The Trial Courts should not disallow exemption in casual manner, so as to issue NBW for non-appearance and then in refusing bail to an accused-petitioner on voluntary surrender or on production on arrest so as to give a taste of imprisonment as a lesson. Refusing exemption and issuing NBW and in refusing bail, despite surrender voluntarily, merely due to non-appearance on a date(s) during trial [which was informed of and for which ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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application for exemption disclosing bonafide reasons being in the deep sea-abroad for earning livelihood} certainly amounts to defeating the mandate of bail .
under criminal justice system, whereby the punishment commences post-conviction and an accused is deemed to be innocent until duly tried and found guilty.
11(vi). The Impugned Order and the condition No. 14 (l) therein, shall certainly amount to jeopardizing the personal liberty, dignity and curtailing and restricting the fundamental right to earn livelihood under Article 21 of the Constitution of India, merely due to the pending trial and non-appearance on a date therein [through exemption sought]. The impugned order by interpreting condition No.14(l) in an onerous manner does not stand the test of judicial scrutiny, which results in making the aforesaid condition punitive and preventative, which is impermissible in law. Exemption from appearance should be construed liberally, except when, such an exemption is not ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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bonafide and/or is sought for unduly prolonging the trial. Grant of exemption or denial of exemption has to exercised judiciously and not to achieve alien .
purpose by remitting him to judicial custody, so as to teach the accused lesson for non-appearance earlier.
11(vii). While dealing with the right of an accused for bail and the onerous conditions in bail, it has been held by the Hon'ble Supreme Court in Guddan alias Roop Narayan versus State of Rajasthan, 2023 SCC OnLine SC 1242, as under:-
"11. In the case of Sanjay Chandra V. Central Bureau of Investigation, (2012) 1 SCC 40, while hearing a bail Application in a case of an alleged economic offence, this court held that the object of bail is neither punitive nor preventative. It was observed as under:
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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guilty.
23. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would .
be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
25. The provisions of CrPC confer discretionary jurisdiction on criminal courts to grant bail to the accused pending trial or in appeal against convictions; since the jurisdiction is discretionary, it has to be exercised with great care and caution by balancing the valuable right of liberty of an individual and the interest of r the society in general. In our view, the reasoning adopted by the learned District Judge, which is affirmed by the High Court, in our opinion, is a denial of the whole basis of our system of law and normal rule of bail system. It transcends respect for the requirement that a man shall be considered innocent until he is found guilty. If such power is recognised, then it may lead to chaotic situation and would jeopardise the personal liberty of an individual.
27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
12. Further, in the case of Sandeep Jain v. National Capital Territory of Delhi, (2000) 2 SCC 66, this Court, while hearing a bail application held that conditions for grant of bail cannot become so onerous that their existence itself is tantamount to refusal of bail. This Court held as under:
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" We are unable to appreciate even the first order passed by the Metropolitan Magistrate imposing the onerous condition that an accused at the FIR stage should pay a huge sum of Rs. 2 lakhs to be set at liberty. If he had paid it is a different matter. But the fact that he was not able to pay .
that amount and in default thereof he is to languish in jail for more than 10 months now, is sufficient indication that he was unable to make up the amount. Can he be detained in custody endlessly for his inability to pay the amount in the range of Rs. 2 lakhs? If the cheques issued by his surety were dishonoured, the Court could perhaps have taken it as a ground to suggest to the payee of the cheques to resort to the legal remedies provided by law.
Similarly if the Court was dissatisfied with the conduct of the surety as for his failure to raise funds for honouring the r cheques issued by him, the Court could have directed the appellant to substitute him with another surety. But to keep him in prison for such a long period, that too in a case where bail would normally be granted for the offences alleged, is not only hard but improper. It must be remembered that the Court has not even come to the conclusion that the allegations made in the FIR are true. That can be decided only when the trial concludes, if the case is charge-sheeted by the police."
12. The Impugned Order dated 23.04.2024 [Annexure P-3] rejecting bail, on the ground that the petitioner has gone abroad without informing or without obtaining permission of the Court, is contrary to records, when, no such condition was ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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imposed in the Earlier Bail Order dated 02.03.2020 [Annexure P-2]. In absence of any such condition, the impugned order rejecting bail, cannot sustain, in .
the instant case.
12(i). The Impugned Order dated 23.04.2024 [Annexure P-3] in sending the petitioner to judicial custody, on surrender on 22.04.2024 and in neither cancelling the NBW's and in rejecting/denying bail to him on 23.04.2024 is dehors the object and mandate of Section 70(2), Section 71 and Second Proviso to Section 81 of the Cr.P.C., when, the accused-
petitioner appears on arrest or surrender, then, the Trial Court was bound to release the petitioner on bail, even if the accusation was for non-bailable offence(s). The Trial Court could refuse to exercise such discretion, in case, the accused after the issuance of NBW's for non-appearance was involved in another offence, which do not exist in this case. Hence, the Impugned order in neither cancelling the NBW's, ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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on voluntary surrender on 22.04.2024 but remitting the petitioner to judicial custody on 22.04.2024 and then, in denying bail on 23.04.2024 the petitioner .
by ignoring the mandate of the Statutory Provisions deserves to be set aside. Ordered accordingly.
12(ii). While dealing with the mandate object and scope of Section 70 of Cr.P.C. [in context of PMLA Act], the Hon'ble Apex Court in Tarsem Lal versus Directorate Enforcement Jalandhar Zonal Office, 2024 SCC OnLine SC 971, reads as below:
"17. Even if a bond is not furnished under Section 88 by an accused and if the accused remains absent after that, the Court can always issue a warrant under Section 70 (1) of the CrPC for procuring the presence of the accused before the Court. In both contingencies, when the Court issues a warrant, it is only for securing the accused's presence before the Court. When a warrant is issued in such a contingency, it is not necessary for the accused to apply for bail. Section 70, which confers power on the Court to issue a warrant, indicates that the Court which issues the warrant has the power to cancel it. Section 70 reads thus:
"70. Form of warrant of arrest and duration.--
(1) Every warrant of arrest issued by a Court under this Code shall be in writing, signed ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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by the presiding officer of such Court and shall bear the seal of the Court.
(2) Every such warrant shall remain in force until it is cancelled by the Court which issued it, or until it is executed."
.
(emphasis added) Thus, sub-section (2) of Section 70 confers power on the Court to cancel the warrant. When a bailable warrant is issued to an accused on the grounds of his non-appearance, he is entitled to be enlarged on bail as a matter of right when he appears before the Court. Therefore, he need not apply for cancellation of the warrant."
In the background of the mandate of law in case of Tarsem Lal [supra], in case a warrant (NBW) is issued under Section 70(1) of Cr.P.C, for non-appearance then, on appearance upon arrest or upon surrender, such an accused is entitled to be enlarged on bail as matter of right. In these circumstances, the Impugned Order dated 23.04.2024 by sending the bail petitioner to judicial custody upon surrender on 22.04.2024, itself is not in spirit of law is therefore, quashed and set-aside.
13. The Status Report filed by the State Authorities, does not indicate that after enlargement ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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on bail, there is likelihood possibility that the bail petitioner may tamper with the evidence or witnesses or may cause any inducement, threat or promise to .
any person or persons when, he was already enlarged on bail by this Court on 02.03.2020 [Annexure P-2].
14. The Status Report does not point out any adversarial circumstances on account of the past antecedents or criminal record in case of the bail petitioner [Shubham Parmar].
15. Even as per Status Report, the matter was fixed before the Trial Court i.e. Learned Additional Sessions Judge-I, Una, District Una, on 10.05.2024, which date, the bail petitioner has moved an application for discharge under Section 227 of Cr.P.C.
for which the State Authorities were granted time to file reply thereto and the matter is listed on 17.06.2024. Then, no prejudice will be caused to the State, in case bail is granted at this stage.
The participation of bail petitioner in trial can be ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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taken care of by this Court, by imposing stringent conditions in the instant bail order, as under:-
(i) The bail petitioner shall furnish a fresh personal bond in the sum of Rs.75,000/-
.
with two local sureties in the like amount to the satisfaction of Trial Court concerned;
(ii) The bail petitioner, shall not leave the country, except with prior permission of Trial Court concerned;
(iii) In case, the bail petitioner is permitted by Trial Court to go abroad for job etc. then, the bail petitioner shall convey his functional Mobile Number and the Whatsapp Number including E-mail ID and that of his sureties to the Trial r Court ;
(iv) The bail petitioner shall inform the Investigating Officer concerned before leaving the limits of Trial Court for job- vocation, within India and furnish his functional Mobile Number and also the WhatsApp Number, including e-Mail ID and that of his surety;
(v) The bail petitioner shall appear in Trial except in case of his medical exigencies; or other exigencies or circumstances as may be permitted by the Trial Court;
(vi) Subject to prior permission by the Trial Court, the bail petitioner may appear by video-conferencing [in case permitted to go abroad or/and bona fide extenuating circumstance abroad];
(vii) That the petitioner shall not tamper with the witnesses or the evidence in any manner;
(viii) The petitioner shall not directly or indirectly make any inducement, threat or promise to any person or person(s), acquainted with the facts of the case;
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(ix) The petitioner shall neither involve himself nor shall he abet the commission of any offence. Involvement or abetting of any offence, shall entail cancellation of bail, automatically;
(x) It is clarified that violation of any of the .
conditions, imposed hereinabove shall entail cancellation of bail automatically ; and
(x) Parties are at liberty to move this Court for clarification, modification or cancellation in case of violation of any of the conditions herein.
16. In view of the above discussion and in peculiar facts and to circumstances instant petition is allowed and the State Authorities r hereinabove, the are directed to enlarge the petitioner on bail, subject to the conditions referred to above ; and the Impugned Order dated 23.04.2024 [Annexure P-3], is declared inoperative and the same is quashed and set-
aside.
17. Petitioner is permitted to produce/use copy of this order, downloaded from the web-page of the High Court of Himachal Pradesh, before the authorities concerned, and the said authorities shall not insist for production of a certified copy, but if required, ::: Downloaded on - 07/06/2024 20:33:17 :::CIS
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may verify passing of order from website of the High Court.
In aforesaid terms, the instant petition as well .
as all pending miscellaneous application(s), if any, shall also stands disposed of, accordingly.
(Ranjan Sharma) Judge May 28, 2024 (Shivender) ::: Downloaded on - 07/06/2024 20:33:17 :::CIS