Himachal Pradesh High Court
Shri Anuj Bhardwaj vs State Of H.P on 8 January, 2021
Author: Anoop Chitkara
Bench: Anoop Chitkara
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 41 of 2021
.
Date of Decision: 8.1.2021
Shri Anuj Bhardwaj .... Petitioner
Versus
State of H.P .... Respondent
_____________________________________________________________
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge
Whether approved for reporting? No
For the petitioner:
For the respondent:
r to
Mr. Suneet Goel, Advocate.
Mr. Ram Lal Thakur, Assistant A.G., with Mr.
Rajat Chauhan Law Officer.
THROUGH VIDEO CONFERENCE
FIR No. Dated Police Station Sections
24/2018 22.4.2018 Chirgaon, Rohru, 420, 467, 468, 471, IPC
Distt. Shimla
Anoop Chitkara, Judge (Oral)
For forging insurance policy, leading to a complaint by New India Assurance Company, which led to registration of FIR, and the petitioner, is now 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 directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.
3. The bail petition is silent about criminal history, however, Mr. Sunit Goel, Ld. Counsel for the bail petitioner states on instructions that the petitioner has no ::: Downloaded on - 08/01/2021 20:17:00 :::HCHP 2 criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed was more than three years.
4. Briefly, the allegations against the petitioner are that the gist of the allegations .
contained in the said First Information Report is that vehicle bearing registration No.DL-1GC-262 (Truck) owned by Sh. Kamal Kumar met with an accident on 1.10.2014. Consequent to the accident, one Shri Zakir Hussain died and one Shri Ramesh Kumar was injured. Subsequently, two claim petitions, one by legal heirs of the deceased and the other by the injured came to be filed before the learned Motor Accidents Claims Tribunal, Shimla for seeking compensation, wherein the owner (Sh.Kamal Kumar), driver (Sh.Kaptaan) and the Insurer (New India Insurance Company Ltd.) were arrayed as parties. The stand taken by the owner (Sh. Kamal Kumar) and the driver in the said proceedings was that the vehicle in question was not involved in the accident. Policy certificate was filed by Shri Kamal Kumar showing New India Insurance Company Ltd. as the insurer of the vehicle in question. Besides this Shri Kamal Kumar deposed on an affidavit that the vehicle in question was insured by New India Insurance Company Ltd. It was alleged that the details of the insurance cover could not be verified by the New India Insurance Company Ltd. till the conclusion of the claim, since their Shimla office was coordinating with Chennai Office and no specific defense with regard thereof could be taken by it in the proceedings before MACT, Shimla. However, subsequently the Insurance Company was able to locate the details of the policy certificate, which showed that the policy certificate filed by Shri Kamal Kumar in the judicial record was fake and forged. Further that Shri Kamal Kumar had neither paid any premium to the Insurance Company nor had any coverage been extended to him by the Insurance Company. Due to the aforesaid malafide acts on the part of Shri Kamal Singh in knowingly filing the forged and fabricated policy certificate award in the sum of Rs.23,75,000/- had been passed by MACT, Shimla against the Insurance Company in one of the petitions and the other petition was still pending.
5. Mr. Suneet Goel, learned counsel for the petitioner contends that the custodial investigation would serve no purpose whatsoever. The incarceration before the proof of guilt would cause grave injustice to the petitioner and family. He has drawn attention of this Court to paragraph Nos.2(iii) to 2(v) of the bail petition, wherein he ::: Downloaded on - 08/01/2021 20:17:00 :::HCHP 3 has mentioned that since he has strained relations with his family, he left for Arunachal Pradesh and as such, he could not know about the issuance of warrants against him. Learned counsel for the petitioner also draws attention of this Court to .
various annexures annexed with this petition from Annexure P/3 to Annexure P/7 to substantiate his arguments.
6. On the contrary, Ld. Additional Advocate General contends that the accused is a proclaimed offender and given his past conduct; he is likely to abscond. He further insists that if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.
7. I have gone through the contents of the petition as well as the annexures in support of the same. There is no reason to disbelieve the contention of the petitioner. We are dealing only with anticipatory bail. Given the nature of the offences, i.e., 420, 467, 468 and 471, IPC, no reasonable purpose would be solved by custodial investigation or pre-trial incarceration.
8. In Mahender Kumar v State of Himachal Pradesh, CrMPM No. 1682 of 2020, (Para 11), this Court after referring the Judicial Precedents on anticipatory bail to proclaimed offenders, observed as follows:
[11]. Section 82 of CrPC neither creates any riders nor imposes any restrictions in the filing of anticipatory bails by the proclaimed offenders. Even in Lavesh v. State (NCT of Delhi), (2012) 8 SCC 730, (Para 10), while laying down the law on anticipatory bails to absconders, Hon'ble Supreme Court structured the pronouncement by the words, "Normally." An analysis of entire allegations creates a possibility of the accused smitten by love, became melancholic, and left the area on June 20, 2013, i.e., before the registration of FIR dated July 19, 2013.
After that, compelled by the lockdown, and fear created by the pandemic of COVID-19, returned home, where for the first time he came to know about the FIR and already declared as a proclaimed offender cannot be ruled out. Resultantly, the facts and circumstances are not normal. The legal maxim Domus sua cuique est tutissimum refugium, aptly describes the plight of the accused, which means every man's house is his safest refuge. Thus, the circumstances can not be termed as normal for the accused, and he makes out a special case for bail. A balanced approach would work as an incentive, a catalyst for proclaimed offenders to surrender to the Court of Law, speeding up the process, and bringing the guilty to Justice and Justice to the guilty.
::: Downloaded on - 08/01/2021 20:17:00 :::HCHP 49. 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.
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.
12. 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.
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 Shimla, H.P.,"
a) The arresting Officer shall give a time of ten working days to enable the accused to prepare a fixed deposit.::: Downloaded on - 08/01/2021 20:17:00 :::HCHP 5
b) 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.
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 discharged by substitution as the case may be.
14. The furnishing of the personal bonds shall be deemed acceptance of the ::: Downloaded on - 08/01/2021 20:17:00 :::HCHP 6 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 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 ::: Downloaded on - 08/01/2021 20:17:00 :::HCHP 7 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. During the trial's pendency, if the petitioner 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.
16. In case of non-appearance, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest) that the Government(s) might incur to produce him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse shall entitle the trial Court to order the transfer of money from the petitioner's bank account(s). However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner alone, and it relates to the exercise undertaken solely to arrest the petitioner in that FIR, and that voyage was not for any other purpose/function what so ever.
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 ::: Downloaded on - 08/01/2021 20:17:00 :::HCHP 8 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 use the downloaded copy for attesting bonds.
The petition stands allowed in the terms mentioned above.
(Anoop Chitkara) Judge.
Jan 8, 2021 (mamta) ::: Downloaded on - 08/01/2021 20:17:00 :::HCHP