Punjab-Haryana High Court
Vikram @ Bikar vs State Of Haryana on 11 July, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:089625
CRM-M-27386-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
338 CRM-M-27386-2024
Date of Decision: 11.07.2024
Vikram @ Bikar ...Pe oner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Amit Choudhary, Advocate
Mr. Himanshu Se a, Advocate and
Mr. Hri k Gupta, Advocate,
for the pe oner.
Mr. Rajat Gautam, Addl. A.G. Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta/on Sec/ons 260 03.11.2019 Sadar Tohana, Dis3. Fatehabad 341, 342, 365, 395 IPC and Sec on 25 of Arms Act
The pe oner incarcerated on the allega ons of forcibly taken away a tractor alongwith its trolley No. HR24AA-1476 with 104 quintal of paddy in connivance with co- accused a<er tying the tractor's driver had come up before this Court under Sec on 439 of Code of Criminal Procedure, 1973 (CrPC) seeking regular bail.
2. In paragraph 9 of the bail applica on, the accused declares the following criminal antecedents:
Sr. No. FIR No. Dated Offences Police Sta/on 1. 3 01.01.2016 61/1/14 of Excise Act Bhuna 2. 97 08.06.2016 454, 380 IPC Ding, Dis3. Sirsa 3. 244 25.08.2016 457, 380 IPC Bha3u Kalan Dis3. Fatehabad 4. 22 18.01.2017 379 IPC Bhuna 5. 202 19.05.2017 457, 380 IPC Bhuna 6. 246 15.10.2018 323, 427, 452, 506, 34 IPC Uklana, Dis3. Hisar 7. 180 27.05.2019 323, 341, 506 IPC Bhuna 1 1 of 8 ::: Downloaded on - 24-07-2024 06:59:43 ::: Neutral Citation No:=2024:PHHC:089625 CRM-M-27386-2024
3. The prosecu on's case is being taken from reply dated 10.07.2024 filed by the concerned Deputy Superintendent of Police, which reads as follows "2. That brief facts of the case are that on 03.11.2019, ASI Prem Kumar alongwith fellow police officials was present at Kullan Chowk for patrolling and crime checking duty. Then, complainant Satpal Singh son of Pyara Singh, resident of Haripura, Sirsa met with ASI Prem Kumar and presented an applica(on. The complainant Satpal Singh alleged in his applica(on that on 02.10.2019 at about 03:00 pm, he had sent his driver Jasbir son of Ghukar Ram in his tractor Sonalika bearing registra(on no. HR24AA-1476 a2er loading 104 quintal of paddy in the trolley for selling the same in Tohana Mandi. On 03.10.2019, complainant received a telephonic call of commission agent Bhanu Ram at about 06:00 am that his (complainant) driver had informed him that in the night at about 12:30 am, 4-5 boys si:ng in a car just 1 km ahead of Kullan got stopped the tractor of driver of complainant and the driver of complainant was (ed with a cot a2er tying his legs and mouth. The driver also informed that he somehow got opened his hands at about 05:00 in the morning and therea2er made a telephone call to commission agent Bhanu Ram. Therea2er, the complainant reached on the spot, but he did not find his tractor at the spot. The complainant also alleged that he had suspicion that his driver Jasbir had concealed the tractor-trolley somewhere. On the basis of complaint of complainant, present case FIR was registered against one accused namely Jasbir under sec(on 408 of IPC and inves(ga(on was carried out."
4. Counsel for the pe oner submits that he would have no objec on in case any stringent condi ons this Court might put upon the pe oner. The pe oner contends that the further pre-trial incarcera on would cause an irreversible injus ce to the pe oner and family.
5. While opposing bail, the State contends that given the criminal past, the accused is likely to indulge in crime once released on bail.
REASONING:
6. 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 siJng Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acqui3al 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. 2 2 of 8 ::: Downloaded on - 24-07-2024 06:59:44 ::: Neutral Citation No:=2024:PHHC:089625 CRM-M-27386-2024
7. 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 acqui3al 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.
8. FIR is of year 2019 and considering the fact that the pe oner did not cause any violence with the tractor driver and le< him unheard by tying him on a cot is one of the factors which show that the pe oner has kindness somewhere in his heart. Given the underlying kindness to some extent, coupled with the fact that earlier he was on bail and due to non-appearance, his bail was cancelled and he was taken into custody in this case through produc on warrant from other case and he is in custody since 22.04.2024 in this case, there would no jus fica on for further pre-trial incarcera on at this stage. The pe oner makes out a case for bail. Thus, the previous criminal history of the pe oner is not being considered strictly at this stage as a factor for denying bail.
9. In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Cons tu onal Bench of Supreme Court held that the bail decision must enter the cumula ve effect of the variety of circumstances jus fying the grant or refusal of bail. In Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are en tled to bail if the Court concerned concludes that the prosecu on has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its sa sfac on for the need to release such person on bail, in the given fact situa ons. The rejec on of bail does not preclude filing a subsequent applica on. The courts can release on bail, provided the circumstances then prevailing require, and a change in the fact situa on. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court no ceably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances sugges ve of fleeing from jus ce or thwar ng the course of jus ce or crea ng other troubles in the shape of repea ng offences or in mida ng witnesses and the like by the pe oner who seeks enlargement on bail from the Court. It is true that the gravity of 3 3 of 8 ::: Downloaded on - 24-07-2024 06:59:44 ::: Neutral Citation No:=2024:PHHC:089625 CRM-M-27386-2024 the offence involved is likely to induce the pe oner to avoid the course of jus ce and must weigh when considering the ques on of jail. So also, the heinousness of the crime. In Gudikan Narasimhulu v Public Prosecutor, (1978) 1 SCC 240, (Para 16), Supreme Court held that the delicate light of the law favors release unless countered by the nega ve criteria necessita ng that course. In Prahlad Singh Bha v NCT, Delhi, (2001) 4 SCC 280, Supreme Court highlighted one of the factors for bail to be the public or the State's immense interest and similar other considera ons. In Dataram Singh v State of U3ar Pradesh, 2018:INSC:107 [Para 7], (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is en rely within the discre on of the judge hearing the ma3er and though that discre on is unfe3ered, it must be exercised judiciously, compassionately, and in a humane manner. Also, condi ons for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
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 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.
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. This order shall come into force from the me it is uploaded on the official webpage of this Court.
12. In Madhu Tanwar and Anr. 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.
44 of 8 ::: Downloaded on - 24-07-2024 06:59:44 ::: Neutral Citation No:=2024:PHHC:089625 CRM-M-27386-2024 [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 fiJng 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.
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 court, and in case of non-availability, to any nearest Ilaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned officer 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 dra< favouring concerned Chief Judicial Magistrate for the 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 a3endance 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 a3es ng officer/court thinks appropriate or considers the accused as a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
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. Given the background of allega ons against the pe oner, it becomes paramount to protect the vic m, their family members, as well as the members of society, and incapacita ng the accused would be one of the primary op ons un l the filing of the closure report or discharge, or acqui3al. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restric on is being imposed based on the preponderance of evidence of probability and not of evidence of certainty, i.e., beyond reasonable doubt; and as such, it is not to be construed as an intermediate sanc on]. 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 fi<een days from release from prison 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 acqui3al in this case, provided otherwise permissible in the concerned rules. Restric ng firearms would ins ll confidence in the vic m(s), their families, and society; it would also restrain the accused from influencing the witnesses and repea ng the offence.
16. 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 6
6 of 8 ::: Downloaded on - 24-07-2024 06:59:44 ::: Neutral Citation No:=2024:PHHC:089625 CRM-M-27386-2024 throughout the trial and a<er that in Sec on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi ons.
17. 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 behaviour, 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.
18. The condi ons men oned above imposed by this court are to endeavour 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, 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 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 a<er 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. 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.
22. 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 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).
77 of 8 ::: Downloaded on - 24-07-2024 06:59:44 ::: Neutral Citation No:=2024:PHHC:089625 CRM-M-27386-2024 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.
23. The SHO of the concerned police sta on or the inves ga ng officer shall arrange to send a copy of this order, preferably a so< copy, to the complainant and the vic m, without any delay. If the vic m(s) no ce any viola on of this order, they may inform the SHO of the concerned police sta on, the trial court, or even this court.
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.
Pe//on allowed in aforesaid terms. All pending applica ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
11.07.2024
Jyo -II
Whether speaking/reasoned: Yes
Whether reportable: No.
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