Himachal Pradesh High Court
Ranjeet Singh vs State Of H.P on 2 January, 2021
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 2292 of 2020 Reserved on: 1st Jan, 2021.
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Date of Decision: 2nd Jan, 2021.
Ranjeet Singh ...Petitioner.
Versus
State of H.P. ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 NO
For the petitioner: rMr. Maan Singh, Advocate.
For the respondent: Mr. Nand Lal Thakur, Addl. Advocate General and Mr. Ram Lal Thakur, Deputy Advocate General.
THROUGH VIDEO CONFERENCE Anoop Chitkara, Judge.
FIR No. Dated Police Station Sections
241/2017 29.7.2017 Nurpur, Distt. Kangra 379, IPC
A habitual offender, who underwent sentences upon conviction under various offences including rape, is once again in prison w.e.f. 9.7.2020, for stealing shuttering material amounting to Rs.1,00,000/-, and has now come up before this Court under Section 439 of CrPC, seeking bail, on the grounds that he is in custody for a considerable time.
2. Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 5.11.2020, Ld. Additional Sessions Judge-1, Kangra at Dharamshala, HP, dismissed the petition because the accused is a habitual offender.
3. Based on the complaint that the shuttering material, which was hypothesized to State Bank of India, was found stolen, the police registered the FIR mentioned 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 02/01/2021 20:16:06 :::HCHP 2above. The investigation revealed involvement of the petitioner. Out of the total 25 steel frames, the police recovered three from one auto, which had broken down and on coming to know that the steel frames were stolen property, the driver of the said .
auto had unloaded the same and toed away his auto. The investigation revealed that the petitioner had committed the alleged theft. However, the police could not arrest him and sought proclamation against him. The concerned Court issued proclamation under Section 82, Cr.PC on 24.9.2019. On 9.7.2020, the police arrested the accused and now, he is under custody.
4. I have heard learned counsel for the parties and seen the status report.
Status report mentions the following criminal history:
(i) A separate case
under Section 174A of the IPC is
r also registered
against him.
(ii) FIR No.315/2001 dated
9.11.2001, registered under Sections
457, 511 IPC.
(iii) FIR No.47/2008 dated 6.5.2008, registered under Sections 61- 1-14 of the Excise Act, Police Station, Division No.1, Pathankot.
(iv) FIR No.266/2007 dated 2.9.2007, registered under Sections
457, 506 IPC, Police Station Nurpur.
(v) FIR No.293/2005 dated 28.9.2005, registered under Section
376, 506 IPC.
5. Mr. Ram Lal Thakur, Ld. Deputy Advocate General contends that 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.
6. Without discussing the gravity of the previous convictions, it is suffice to state that in the present case, where the maximum sentence that could have been imposed ::: Downloaded on - 02/01/2021 20:16:06 :::HCHP 3 is three years and the petitioner is in custody from 9.7.2020, i.e., around six months, there is no justification to continue his incarceration.
7. 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.
8. Given the mandate of Hon'ble Supreme Court in Arnesh Kumar v State of Bihar, (2014) 8 SCC 273, the bail has to be granted when the sentence for imprisonment is seven years or less.
9. 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.
10. 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.
11. 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.
::: Downloaded on - 02/01/2021 20:16:06 :::HCHP 412. 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 Judicial Magistrate .
having the jurisdiction over the Police Station conducting the investigation, and in case of non-availability, any Ilaqa Magistrate. Before accepting the sureties, the concerned Magistrate 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.
13. 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 "Chief Judicial Magistrate, District Kangra, H.P.," Such Fixed deposits may be made 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. Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit. 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. 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 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. After that, the petitioner shall hand over such proof along with endorsement to the concerned Court. 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 Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged by substitution as ::: Downloaded on - 02/01/2021 20:16:06 :::HCHP 5 the case may be.
14. 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 to 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 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. ::: Downloaded on - 02/01/2021 20:16:06 :::HCHP 6
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.
15. The petitioner shall surrender all firearms, ammunition, if any, along with the arms license to the concerned authority within 30 days from today. However, subject to the provisions of the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case.
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 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 ::: Downloaded on - 02/01/2021 20:16:06 :::HCHP 7 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 or the Court wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.
The petition stands allowed in the terms mentioned above.
(Anoop Chitkara) Judge.
January 2, 2021 (mamta) ::: Downloaded on - 02/01/2021 20:16:06 :::HCHP