Punjab-Haryana High Court
Hans Raj Singh vs State Of Punjab on 20 October, 2023
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2023:PHHC:137361
CRM-M-52664-2023 2023:PHHC:137361
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
205 CRM-M-52664-2023
Date of Decision: 20.10.2023
Hans Raj Singh ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Prateek Gupta, Advocate for the pe oner.
Mr. Shiva Khurmi, AAG, Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta.on Sec.ons 275 02.08.2022 City Ferozepur, 409, 120-B IPC and 13 of District Ferozepur Preven on of Corrup on Act, 1988
1. The pe oner, incarcerated upon his arrest in the FIR cap oned above, has come up before this Court under Sec on 439 of Code of Criminal Procedure, 1973 (CrPC) seeking bail.
2. In paragraph 18 of the bail applica on, the accused declares the following criminal antecedents:
Sr. No. FIR No. Date Offences Police Sta on 1. 276 02.08.2022 409, 120-B IPC and 13 of City Ferozepur Preven on of Corrup on Act, 1988 2. 277 02.08.2022 409, 120-B IPC and 13 of City Ferozepur Preven on of Corrup on Act, 1988 3. 169 02.08.2022 409, 120-B IPC and 13 of Sadar Ferozepur Preven on of Corrup on Act, 1988
3. Pe oner's counsel prays for bail by imposing any stringent condi ons including declara on of assets by the pe oner and family members, and are also voluntarily agreeable to the condi on that ll the conclusion of the trial, the pe oner shall keep 1 1 of 8 ::: Downloaded on - 21-10-2023 19:14:35 ::: Neutral Citation No:=2023:PHHC:137361 CRM-M-52664-2023 2023:PHHC:137361 only one mobile number, which is men oned in AADHAR card, if any, and within fiAeen days undertakes to disconnect all other mobile numbers. It is submiBed that he shall not take such declara on as self incrimina on, viola on of Ar cle 20/21 of Cons tu on of India or any other fundamental right/law. The pe oner contends that the further pre- trial incarcera on would cause an irreversible injus ce to the pe oner and family.
4. The state's counsel opposes the bail and states that considering the allega ons, the pe oner is not en tled to any bail. The State's counsel further contends that given the criminal past, the accused is likely to indulge in crime once released on bail.
REASONING:
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 siIng Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquiBal 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. 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 acquiBal 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 against the pe oner are that he along with other co-accused in the capacity of Inspectors (PUNGRAIN) are responsible for the embezzlement of the wheat stock and caused financial loss to the Government.
7-A. As per paragraph 14 of the bail pe on, the pe oner is in custody since 19.08.2023. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allega ons, and the other factors peculiar to this 2 2 of 8 ::: Downloaded on - 21-10-2023 19:14:36 ::: Neutral Citation No:=2023:PHHC:137361 CRM-M-52664-2023 2023:PHHC:137361 case, there would be no jus fiability further pre-trial incarcera on at this stage, subject to the compliance of terms and condi ons men oned in this order. Thus, the previous criminal history of the pe oner is not being considered strictly at this stage as a factor for denying bail.
8. In Sanjay Chandra v. Central Bureau of Inves ga on, (2012) 1 SCC 40, Supreme Court holds, [28] We are conscious of the fact that the accused are charged with economic offences of huge magnitude. We are also conscious of the fact that the offences alleged, if proved, may jeopardize the economy of the country. At the same me, we cannot lose sight of the fact that the inves ga ng agency has already completed inves ga on and the charge sheet is already filed before the Special Judge, CBI, New Delhi. Therefore, their presence in the custody may not be necessary for further inves ga on. We are of the view that the appellants are en tled to the grant of bail pending trial on stringent condi ons in order to ally the apprehension expressed by CBI.
9. 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 v. State (NCT of Delhi), 2020:INSC:106 [Para 92], (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.
10. 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.
11. In Madhu Tanwar. v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M- 27097-2023, decided on 29-05-2023, this court observed, [10] The exponen al growth in technology and ar ficial intelligence has transformed iden fica on techniques remarkably. Voice, gait, and facial recogni on are incredibly sophis cated and pervasive. Impersona on, as we know it tradi onally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from jus ce, then in such cases, appropriate condi ons can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss.
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[21] In this era when the knowledge revolu on has just begun, to keep pace with exponen al and unimaginable changes the technology has brought to human lives, it is only fiIng that the dependence of the accused on surety is minimized by giving alterna ve op ons. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate.
12. 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 court, and in case of non-availability, to any nearest Ilaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned court must sa sfy that if the accused fails to appear in court, then such surety can produce the accused before the court. OR
(b). Pe oner to hand over to the concerned court 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 favor of the 'Chief Judicial Magistrate' of the concerned district, or blocking the aforesaid amount in favour of the concerned 'Chief Judicial Magistrate'. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be permissible for the pe oner to prepare an account payee demand draA favouring concerned Chief Judicial Magistrate for a similar amount.
(c). Such court shall have a lien over the funds 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.
(d). The pe oner is to also execute a bond for aBendance 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 of this bail order.
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(e). While furnishing personal bond, the pe oner shall men on the following personal iden fica on details:
1. AADHAR number
2. Passport number, (If available), when the court aBes ng the bonds thinks appropriate or considers the accused as a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
13. 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.
14. Pe oner to comply with their undertaking made in the bail pe on, made before this court through counsel as reflected at the beginning of this order. If the pe oner fails to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the vic m/complainant may file any such applica on for the cancella on of bail, and the State shall file the said applica on.
15. The pe oner is directed not to keep more than one prepaid SIM, i.e., one pre-
paid mobile phone number, ll the conclusion of the trial; however, this restric on is only on prepaid SIMs [mobile numbers] and not on post-paid connec ons or landline numbers. The pe oner must comply with this condi on within fiAeen days of release from prison. The concerned DySP shall also direct all the telecom service providers to deac vate all prepaid SIM cards and prepaid mobile numbers issued to the pe oner, except the one that is men oned as the primary number/ default number linked with the AADHAAR card and further that ll the no objec on from the concerned SHO, the mobile service providers shall not issue second pre-paid SIM/ mobile number in the pe oner's name. Since, as on date, in India, there are only four prominent mobile service providers, namely BSNL, Airtel, Vodafone-Idea, and Reliance Jio, any other telecom service provider are directed to comply with the direc ons of the concerned Superintendent of Police/Commissioner of Police, issued in this regard and disable all prepaid mobile phone numbers issued in the name of the pe oner, except the main number/default number linked with AADHAR, by taking such informa on from the pe oner's AADHAR details or any other source, for which they shall be legally en tled 5 5 of 8 ::: Downloaded on - 21-10-2023 19:14:36 ::: Neutral Citation No:=2023:PHHC:137361 CRM-M-52664-2023 2023:PHHC:137361 by this order. This condi on shall con nue ll the comple on of the trial or closure of the case, whichever is earlier. In Vernon v. The State of Maharashtra, 2023 INSC 655, [para 45], while gran ng bail under Unlawful Ac vi es (Preven on) Act, 2002, Supreme Court had directed imposi on of the similar condi on, which reads as follows, "(d) Both the appellants shall use only one Mobile Phone each, during the me they remain on bail and shall inform the Inves ga ng Officer of the NIA, their respec ve mobile numbers."
16. Within fiAeen days, the pe oner shall handover his two notarized affidavits, and also two notarized affidavits of his spouses(s) if any, [One set for Inves gator and one for the pe oners' employer], men oning the complete following details, held either individually or jointly, and cash-in-hand. If the pe oner(s) fail to comply with this condi on, then on this ground alone the bail might be canceled, and the State shall file the said applica on. Such disclosure of assets will not only send a stern message to the pe oner not to repeat the offence but also put all this ill-goBen money kept with others at the peril of never being returned, for the reason that the money handler would also know of the declara on on affidavit wherein there would be neither any reference nor a trace of the funds in the laundering process. The pe oner and his spouses(s) to declare their all assets of India and abroad, in the following formats in Rupees (INR):
Total value of all net worth as on 31 Mar 2023 Current total value of all net worth Cash in hand as on date (Indian Rupee) Cash in hand as on date (All other currencies) Details of all bank accounts Current amount in cash, savings, checking, deposit accounts and crypto currency Total Value of equity shares & mutual funds as on 31 Mar 2023 Current total Value of equity shares & mutual funds Total Value of recurring deposit, fixed deposits, bonds, pension plans, & annuity insurance policies as on 31 Mar 2023 Current total Value of recurring deposit, fixed deposits, bonds, pension plans, & annuity insurance policies Current total market value of all jewellery, sovereign metals, artefacts, an.ques etc. Current total market value of property including buildings, land etc. its area and loca.on 6 6 of 8 ::: Downloaded on - 21-10-2023 19:14:36 ::: Neutral Citation No:=2023:PHHC:137361 CRM-M-52664-2023 2023:PHHC:137361 Total income in FY 2022-23 including farms, agriculture, hor.culture, wages, salaries, commissions, interests, royal.es, rent, income, or giGs received from other family members Enter the details of vehicles owned or in possession Any other asset or income Total liabili.es as on 31 March 2023 (Including loans) Current total liabili.es (Including loans) Approximate expenditure during FY 2022-23 Any other expenses
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 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 aAer that in Sec on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi ons.
18. The condi ons men oned above imposed by this Court are to endeavour that the accused tries to reform, does not repeat the offence and to provide an opportunity to the vic m to consider legal remedies for recovery of the amount. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], 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."
19. 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.
20. If the pe oner finds the 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 7 7 of 8 ::: Downloaded on - 21-10-2023 19:14:36 ::: Neutral Citation No:=2023:PHHC:137361 CRM-M-52664-2023 2023:PHHC:137361 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 aAer 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.
21. 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.
22. In return for the protec on from incarcera on, the Court believes that the accused shall also reciprocate through desirable behavior.
23. 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.
Pe..on allowed in aforesaid terms. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
20.10.2023
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
Neutral Citation No:=2023:PHHC:137361
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