Himachal Pradesh High Court
Om Chand vs State Of H.P on 28 June, 2021
Author: Anoop Chitkara
Bench: Anoop Chitkara
1
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No. 1165 of 2021
Date of Decision: 28.6.2021.
.
Om Chand ...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: r Mr. G.R. Palsra, Advocate.
For the respondent: Mr. Nand Lal Thakur Addl. Advocate General, Mr. Ram
Lal Thakur Deputy Advocate General, and Mr. Rajat
Chauhan Law Officer.
THROUGH VIDEO CONFERENCE
FIR No. Dated Police Station Sections
43/2021 2.6.2021 Gohar, Mandi 363, 368, 376, 120B, IPC and
S.6, POCSO & S.66E, 67 of IT
Act
Anoop Chitkara, Judge (Oral)
The petitioner who is a Fufa of the main accused, and is now apprehending arrest for giving shelter to the main accused in his house who is aged 20 years and had abducted a girl aged 17 years and 8 months and the accused after abducting the girl had brought her in his house, has come up before this Court under Section 438 CrPC, seeking anticipatory bail.
2. Earlier, the petitioner had filed a petition under Section 438 Cr.PC before the concerned Sessions Judge. However, vide order dated 23.6.2021, Ld. Special Judge, Fast Track POCSO Court, Mandi, HP, dismissed the petition.
3. In Para 7 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the accused.
1Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 28/06/2021 20:13:19 :::HCHP 24. Briefly, the allegations against the petitioner are that on 2 nd June, 2021 father of the victim informed the aforesaid police station that her minor daughter who had left home in the morning of 31st May, 2021 did not return home. After that, they .
searched her on their own and came to know that one Jagdish has allured and abducted her. The girl was aged more than 17 years as her date of birth is 4.9.2003. Thereafter, Police registered the FIR mentioned above and started frantic search of the victim. The police recovered the victim from Gohar Bazar. The accused Jaswant was also present with her. The victim revealed that on 31 st May, 2021 at 4.00 a.m. the accused Jaswant alias Jagdish had allured her away and taken her in his car. He had taken her to the house of her Bua where they stayed together. During the night, he forcibly committed rape upon her. After that the investigator took the victim to Medical Officer, who also found traces of coitus. The role assigned to the petitioner is that he was instrumental in her abduction and he gave shelter to the petitioner and the victim in his house.
5. Ld. Counsel for the petitioner contends that 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. While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to very stringent conditions.
REASONING:
7. The limited question before this Court is to grant bail or not. These observations nowhere suggest his innocence or lesser role. Without commenting on the case's merits and the circumstances peculiar to this case, the petitioner makes a case for release on bail.Given the age of the victim to be 17 years and 8 months and age of the petitioner to be 20 years, there is no justification for custodial investigation or pre-trial incarceration of the petitioner.
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, ::: Downloaded on - 28/06/2021 20:13:19 :::HCHP 3 (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. Given the above reasoning, coupled with the peculiar facts and circumstances of the case, 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.
10. 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.
11. The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Ten thousand (INR 10,000/-), and shall furnish two sureties of Rs. Twenty-five thousand (INR 25,000/-) each, 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.
12. In the alternative, the petitioner may furnish a personal bond of Rs. Ten thousand (INR 10,000/-), and fixed deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in favour of Chief Judicial Magistrate of the concerned district.
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 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 ::: Downloaded on - 28/06/2021 20:13:19 :::HCHP 4 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.
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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.
13. The furnishing of the personal bond 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 ::: Downloaded on - 28/06/2021 20:13:19 :::HCHP 5 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 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.
14. The bail bonds shall continue to remain in force throughout the trial ::: Downloaded on - 28/06/2021 20:13:19 :::HCHP 6 and after that in terms of Section 437-A of the CrPC.
15. 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.
16. 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.
17. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.
18. The SHO of the concerned Police Station or the Investigating Officer shall arrange to send a copy of this order, preferably a soft copy, to the complainant and the victim, at the earliest, and not later than two days. In case the victim notices stalking or any violation of this order, she may either inform the SHO of the concerned Police Station or the Trial Court or even to this Court.
19. 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.
20. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.
21. There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status 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.
In the facts and circumstances peculiar to this case, the petition is allowed in the terms mentioned above.
Copy Dasti.
Anoop Chitkara, Judge.
28.6.2021 (mamta) ::: Downloaded on - 28/06/2021 20:13:19 :::HCHP