Punjab-Haryana High Court
Nishant Tangri And Another vs State Of Haryana on 22 May, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2023:PHHC:074393
CRM-M-26129-2023 2023:PHHC:074393
106 IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-26129-2023
Date of Decision: 22.05.2023
Nishant Tangri and another ...Pe oners
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Gaurav Garg Dhuriwala, Advocate and
Mr. Sachit Jaiswal, Advocate for the pe oners.
Mr. Rajat Gautam, Addl. A.G. Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta0on Sec0ons
167 12.04.2023 Sector 13/17, 61/4/2020 of the Punjab
District Panipat Excise Act, 1914 (Haryana
Amendment Bill, 2020) and
120-B IPC
1. The pe oners apprehending arrest in the FIR cap oned above, have come up before this Court under Sec on 438 CrPC seeking an cipatory bail.
2. In paragraph 22 of the bail applica on, the accused declares the following criminal antecedents:
Sr. No. FIR No. Date Offences Police Sta0on 1. 49 22.03.2007 323, 324, 148, 149 IPC Model Town, Hoshiarpur 2. 39 03.04.2003 188, 168, 271 IPC Sadar Hoshiarpur 3. 43 02.05.2020 61/1/14 Excise Act and Talwara, District 188, 269, 270, 271 IPC Hoshiarpur
3. Pe oner's counsel prays for bail by imposing any stringent condi ons. Pe oner's counsel argued that the custodial inves ga on would serve no purpose whatsoever, and the pre-trial incarcera on would cause an irreversible injus ce to the pe oner and family.
4. While opposing the bail, the State's counsel contends that given the criminal past, the accused is likely to indulge in crime once released on bail.
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5. In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 3 SCC 382, Hon'ble Supreme Court holds, [10] It is not in dispute and highlighted that the second respondent is a siFng Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquiHal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdic on of the Court etc.
6. In Paramjeet Singh v. State of Punjab, CRM-M 50243 of 2021, this court observed, While considering each bail pe on of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the an thesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Informa on Reports, wherein the bail pe oner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecu ons resul ng in acquiHal or discharge, or when Courts quashed the FIR; the prosecu on stands withdrawn, or prosecu on filed a closure report; cannot be included. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.
7. The allega ons are transpor ng alcohol, which is the State's privilege, without paying the revenue and in viola on of the State's Excise Policy.
8. Given the sentence prescribed, the nature of evidence, and other factors and circumstances peculiar to this case, it may be appropriate to afford the pe oner a final opportunity to course-correct. Thus, the previous criminal history of the pe oner is not being considered strictly at this stage as a factor for denying bail. Furthermore, a prima facie perusal of paragraph 6 of the bail pe on reveals sufficient grounds for gran ng bail.
9. In the present case, the maximum sentence imposable for the offences men oned in FIR does not exceed seven years. Thus, direc ons passed in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, (Para 13), apply to this pe on, wherein Hon'ble Supreme Court directed all the State Governments to instruct its police officers not to arrest the accused automa cally when the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.
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10. The possibility of the accused influencing the inves ga on, tampering with evidence, in mida ng witnesses, and the likelihood of fleeing jus ce, can be taken care of by imposing elabora ve and stringent condi ons. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Cons tu onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric ve condi ons. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, Supreme Court holds that while exercising power Under Sec on 438 of the Code, the Court is duty-bound to strike a balance between the individual's right to personal freedom and the right of inves ga on of the police. While exercising utmost restraint, the Court can impose condi ons countenancing its object as permissible under the law to ensure an uninterrupted and unhampered inves ga on.
11. Without commen ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men oned above, the pe oner makes a case for bail, subject to the following terms and condi ons, which shall be over and above and irrespec ve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.
12. In Mahidul Sheikh v. State of Haryana, Neutral Cita0on No: 2022:PHHC:003277, [ Para 53], [Law Finder Doc Id # 1933969], this Court observed, [53]. The pragma c approach is that while gran ng bail with sure es, the "Court" and the "Arres ng Officer" should give a choice to the accused to either furnish surety bonds or to handover a fixed deposit, or direct electronic money transfer where such facility is available, or crea ng a lien over his bank account. The accused should also have a further op on to switch between the modes. The op on lies with the accused to choose between the sure es and deposits and not with the Court or the arres ng officer.
13. Given above, provided the pe oner is not required in any other case, the pe oner shall be released on bail in the FIR cap oned above, in the following terms:
(a). Pe oner to furnish personal bond of Rs. Ten thousand (INR 10,000/-); AND
(b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the sa sfac on of the concerned inves gator/SHO. Before accep ng the surety, the concerned officer must sa sfy that if the accused fail to appear in court, then such surety can produce such accused before the court.
OR
(b) Pe oner to hand over to the concerned inves gator/SHO a fixed deposit for Rs. Ten Thousand only (INR 10,000/-), with the clause of automa c renewal of the principal and the interest rever ng to the linked account, made in favour of the 'Chief Judicial Magistrate' of the concerned district. The fixed deposit may be made from any of the banks where the stake of the State is more than 50% or any of the well-established and stable private sector banks. The fixed deposit need not necessarily be made from the pe oner's account.
(c). In case of the launching of the prosecu on, the said fixed deposit be forwarded to the concerned court along with the police report/challan under 173 CrPC.
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(d). Such court shall have a lien over the deposit un l the case's closure, or discharged by subs tu on, or up to the expiry of the period men oned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the en re amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.
(e). It shall be the discre on of the pe oner to choose between surety bonds and fixed deposits. It shall also be open for the pe oner to apply to the Inves gator or the concerned court to subs tute the fixed deposit with surety bonds and vice-versa.
(f). On the reverse page of personal bond, the pe oner shall men on her/his permanent address along with the phone number, preferably that numbers which is linked with the AADHAR, and e-mail (if any). In case of any change in the above par culars, the pe oner shall immediately and not later than 30 days from such modifica on in mate about the change to the concerned police sta on and the concerned court.
(g). The pe oner is to also execute a bond for aHendance in the concerned court(s) as and when asked to do so. The presenta on of the personal bond shall be deemed acceptance of the declara ons made in the bail pe on and all other s pula ons, terms, and condi ons of sec on 438(2) of the Code of Criminal Procedure, 1973, and also of this bail order.
14. The pe oner is directed to join the inves ga on within seven days and also as and when called by the Inves gator. The pe oner shall be in deemed custody for Sec on 27 of the Indian Evidence Act. The pe oner shall join the inves ga on as and when called by the Inves ga ng Officer or any Superior Officer; and shall cooperate with the inves ga on at all further stages as required. In the event of failure to do so, it will be open for the prosecu on to seek cancella on of the bail. Whenever the inves ga on occurs within the police premises, the pe oner shall not be called before 8 AM, let off before 6 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.
15. The pe oner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
16. Given the nature of the allega ons and the other circumstances peculiar to this case, the pe oner shall surrender all weapons, firearms, ammuni on, if any, along with the arms license to the concerned authority within fiWeen days from today and inform the Inves gator about the compliance. However, subject to the Indian Arms Act, 1959, the pe oner shall be en tled to renew and take it back in case of acquiHal in this case, provided otherwise permissible in the concerned rules.
17. During the trial's pendency, if the pe oner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condi on as 4 4 of 6 ::: Downloaded on - 27-05-2023 07:06:07 ::: Neutral Citation No:=2023:PHHC:074393 CRM-M-26129-2023 2023:PHHC:074393 s pulated in this order, it shall always be permissible to the respondent to apply for cancella on of this bail. It shall further be open for any inves ga ng agency to bring it to the no ce of the Court seized of the subsequent applica on that the accused was earlier cau oned not to indulge in criminal ac vi es. Otherwise, the bail bonds shall remain in force throughout the trial and aWer that in Sec on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi ons.
18. In return for the protec on from incarcera on, the Court believes that the accused shall also reciprocate through desirable behavior. It is clarified that in case the pe oner does not mend his ways and repeats the offence or indulge in criminal behavior, then in all future ma ers, the concerned courts shall keep it as a factor that this court had afforded a final opportunity to the pe oner to reform and live a normal life but did not mend his ways.
19. The condi ons men oned above imposed by this court are to endeavor that the accused does not repeat the offence and to ensure the safety of the witnesses, vic m, and their families. In Mohammed Zubair v. State of NCT of Delhi, Writ Pe on (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail condi ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor onal to the purpose of imposing them. The courts while imposing bail condi ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi ons that would result in the depriva on of rights and liber es must be eschewed."
20. Any Advocate for the pe oner and the Officer in whose presence the pe oner puts signatures on personal bonds shall explain all condi ons of this bail order in any language that the pe oner understands.
21. If the pe oner finds bond amount beyond social and financial reach, it may be brought to the no ce of this Court for appropriate reduc on. Further, if the pe oner finds bail condi on(s) as viola ng fundamental, human, or other rights, or causing difficulty due to any situa on, then for modifica on of such term(s), the pe oner may file a reasoned applica on before this Court, and aWer taking cognizance, even to the Court taking cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condi on.
22. This order does not, in any manner, limit or restrict the rights of the Police or the inves ga ng agency from further inves ga on as per law.
23. In case the Inves gator/Officer-In-Charge of the concerned Police Sta on arraigns another sec on of any penal offence in this FIR, and if the new sec on prescribes 5 5 of 6 ::: Downloaded on - 27-05-2023 07:06:07 ::: Neutral Citation No:=2023:PHHC:074393 CRM-M-26129-2023 2023:PHHC:074393 maximum sentence which is not greater than the sec ons men oned above, then this bail order shall be deemed to have also been passed for the newly added sec on(s). However, suppose the newly inserted sec ons prescribe a sentence exceeding the maximum sentence prescribed in the sec ons men oned above, then, in that case, the Inves gator/Officer-In-Charge shall give the pe oner no ce of a minimum of seven days providing an opportunity to avail the remedies available in law.
24. Any observa on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
25. There would be no need for a cer fied copy of this order for furnishing bonds, and any Advocate for the Pe oner can download this order along with case status from the official web page of this Court and a est it to be a true copy. In case the a es ng officer wants to verify the authen city, such an officer can also verify its authen city and may download and use the downloaded copy for a es ng bonds.
Pe00on allowed in aforesaid terms. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
22.05.2023
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
Neutral Citation No:=2023:PHHC:074393
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