Himachal Pradesh High Court
Anil Kumar Kaul vs State Of Himachal Pradesh on 7 January, 2021
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.M.P.(M) No.1979 of 2020 Decided on: 7th January, 2021 .
__________________________________________________________________ Anil Kumar Kaul ....Petitioner Versus State of Himachal Pradesh ...Respondent __________________________________________________________________ Coram The Hon'ble Mr. Justice Anoop Chitkara, Judge.
1Whether approved for reporting? No ____________________________________________________________________ For the petitioner: r Mr. Sanjeev Kumar Suri, Advocate. For the respondent: Mr. Ram Lal Thakur, Assistant Advocate General.
THROUGH VIDEO CONFERENCE
FIR Dated Police Station Sections
No.
46 13.07.2020 Kunihar, 409, 420 and 120B of the
District Solan Indian Penal Code.
Anoop Chitkara, Judge.
The petitioner, who was working as Manager of Punjab National Bank and instead of depositing an amount of Rs.5,00,000/-
(Rupees Five Lakh) in the account of the complainant, deposited the same in the accounts of two other persons, whose accounts were come to become NPA and is now under apprehending arrest came up before this Court under Section 438 CrPC, seeking anticipatory bail.
2. The Petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15), wherein the Full bench holds that a person can 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 07/01/2021 20:38:29 :::HCHP 2directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.
3. In Para -7 of the bail application, the petitioner declares .
having no criminal history. Para-7 of the bail petition declares the following criminal history of the petitioner:
a) FIR No. 78, dated 19.10.2019, under Sections 406, 420 and 120 of Indian Penal Code, Police Station not mentioned.
4. Briefly, the allegations against the petitioner are that the amount involved is Rs.5,00,000/-, out of which, Rs.3,00,000/- was deposited by him in the account of one of the co-accused and Rs.2,00,000/- in the account of another co-accused. During investigation, police has recovered Rs.2,00,000/- from one of the co-
accused. The person in whose account Rs.3,00,000/- was deposited, as arrested and released on bail by the concerned Judicial Magistrate, which led to the registration of the FIR, mentioned above.
5. Ld. Counsel for the petitioner contends that the petitioner is suffering from cardiac disease and today, when he reached his office, he was short of breath and in a very bad state of health. During interim bail, the petitioner joined the investigation, and custodial investigation would serve no purpose whatsoever. The incarceration before the proof of guilt would cause grave injustice to the petitioner and family.
6. On the contrary, Mr. Ram Lal Thakur, Ld. Assistant Advocate General contends that the petitioner has other similar cases pending against him. The accused is a proven habitual offender, and given his past conduct; he is likely to repeat the offence. He further insists that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.
7. This Court had granted interim protection to the petitioner on 06.11.2020 subject to joining investigation. After that, the petitioner joined investigation on number of time and as and ::: Downloaded on - 07/01/2021 20:38:29 :::HCHP 3 when called to do so. The fact that 40% of the alleged amount stands recovered and given the health of the petitioner, the petition is allowed.
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8. The possibility of the accused influencing 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 held that unusually, subject to the evidence produced, the Courts can impose restrictive conditions. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, Supreme Court holds that while exercising power Under Section 438 of the Code, the Court is duty-bound to strike a balance between the individual's right to personal freedom and the right of investigation of the police. While exercising utmost restraint, the Court can impose conditions countenancing its object as permissible under the law to ensure an uninterrupted and unhampered investigation.
9. In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 30 & 31), this Court after considering the relevant judicial precedents observed that in reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge; or when Courts quashed the FIR; the prosecution stands withdrawn, or Prosecution filed a closure report; cannot be included. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused. While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the antithesis of law. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.
::: Downloaded on - 07/01/2021 20:38:29 :::HCHP 410. This Court presently is concerned only with this FIR as this incident appeared during his one tenure and, as such, other complaints would be taken for consideration as and when action .
would arise.
11. Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
12. In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that any Court granting bail with sureties 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.
13. Given above, the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Twenty-five thousand (INR 25,000/-), and shall furnish two sureties of a similar amount, to the satisfaction of the Investigator.
Before accepting the sureties, the Attesting Officer must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.
14. In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Twenty-five thousand only (INR 25,000/-), made in favour of " Judicial Magistrate First Class, Arki, District Solan, H.P.,"
a) The arresting Officer shall give a time of ten working days to enable the accused to prepare a fixed deposit.
b) Such Fixed deposits may be made from any of the banks ::: Downloaded on - 07/01/2021 20:38:29 :::HCHP 5 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.
c) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.
d) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.
e) 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.
f) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information be sent either by e- mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR number.
g) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.
h) 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.
i) 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 Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or until ::: Downloaded on - 07/01/2021 20:38:29 :::HCHP 6 discharged by substitution as the case may be.
15. The furnishing of the personal bonds shall be deemed .
acceptance of the following and all other stipulations, terms, and conditions of this bail order:
a) The petitioner to execute a bond for attendance in the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.
b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.
c) 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.
d) The petitioner shall join the investigation as and when ::: Downloaded on - 07/01/2021 20:38:29 :::HCHP 7 called by the Investigating Officer or any Superior Officer;
and shall cooperate with the investigation at all further stages as may be required. In the event of failure to do so, it .
will be open for the prosecution to seek cancellation of the bail. Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.
e) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of summons, bailable and non- bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any). [Hon'ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020]:
i. At the first instance, the Court shall issue the summons.
ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.
iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non- Bailable Warrants to procure the petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.
16. During the trial's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condition as stipulated in this order, the ::: Downloaded on - 07/01/2021 20:38:29 :::HCHP 8 State may move an appropriate application before this Court, seeking cancellation of this bail. Otherwise, the bail bonds shall continue to remain in force throughout the trial and after that in terms of Section .
437-A of the CrPC.
17. Any Advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order, in vernacular and if not feasible, in Hindi.
18. 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 to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.
19. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.
20. 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.
21. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.
22. There would no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order from the official web page of this Court and attest it to be a true copy. In case the attesting officer wants to verify the authenticity, such an officer can also verify its authenticity and may download and ::: Downloaded on - 07/01/2021 20:38:29 :::HCHP 9 use the downloaded copy for attesting bonds.
The petition stands allowed in the terms mentioned above.
.
(Anoop Chitkara)
Judge
January 7, 2021
(R. Atal)
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