Punjab-Haryana High Court
Naveen Alias Dhangewala vs State Of Haryana on 5 July, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:087204
CRM-M-24617-2024 (O&M)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M-24617-2024 (O&M)
Date of Decision: 05.07.2024
Naveen @ Dhangewala ...Pe%%oner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Rajesh Lamba, Advocate
for the pe%%oner.
Mr. Sanjeev Panwar, Addl. A.G., Haryana.
****
ANOOP CHITKARA, J.
CRM-26142-2024 For the reasons men%oned in the applica%on, the same is allowed and the accompanying document is taken on record, subject to all just excep%ons.
Main case
FIR No. Dated Police Sta%on Sec%ons
238 31.08.2023 Bhondsi District 186, 353, 332, 467, 468, 471,
Gurugram, Haryana 420, 201, 120-B IPC and 42-A
of Prisons Act and 7, 8, 13(1)
of PC Act, 1988
1. The pe%%oner, incarcerated upon his arrest in the FIR cap%oned above, came up before this Court under Sec%on 439 of Code of Criminal Procedure, 1973 (CrPC) seeking bail.
2. In paragraph 10 of the bail applica%on, the accused declares the following criminal antecedents:
Sr. No. FIR No. Date Offences Police Sta%on
1. 129 18.04.2018 148, 149, 307, 323, 427, 452, 506 Model Town
IPC, 25 of Arms Act Rewari
2. 120 18.04.2018 148, 149, 323, 452, 307, 302 IPC City Rewari
and 25 of Arms Act
3. 648/17 - 148, 149, 353, 186 IPC and 61 of Model Town
Punjab Excise Act
4. 206/2017 - 148, 149, 324, 325 IPC City Rewari
1
1 of 10
::: Downloaded on - 22-07-2024 02:54:58 :::
Neutral Citation No:=2024:PHHC:087204
CRM-M-24617-2024 (O&M)
5. 175/2019 - 42 of Prisoners Act Bhondsi
6. 304 31.11.2020 42-A of Prisoners Act Bhondsi
Gurugram
7. 207/2022 - 387, 386, 307, 120-B, 506 IPC and Shivaji Park
25 of Arms Act Alwar
8. 150 08.06.2020 148, 149, 302, 201, 216, 420, Kasola
120-B IPC, 25 of Arms Act District
Rewari,
Haryana
3. Pe%%oner's counsel prays for bail by imposing any stringent condi%ons and states that they would have no objec%on to the condi%on of surrender of weapons or any other condi%on which this Court may impose. The pe%%oner contends that the further pre-trial incarcera%on would cause an irreversible injus%ce to the pe%%oner and family.
4. While opposing bail, the State 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 siKng Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquiMal 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. Facts of the case are being taken from reply dated 26.06.2024 filed by Assistant Commissioner of Police, Sohna which reads as under:-
"3. That shorn of unnecessary details, the facts of the case are that one complaint was received in the Police Sta on from District Jail Gurugram, Bhondsi made by the Superintendent, District Jail, Bhondsi, contending therein that on 30.08.2023 around 07:00 PM, when Assistant Superintendent of Jail along with the Jail Warden was checking the barracks with the help of metal detector, in Cell No5, Room No3, a charger and black colour 2 2 of 10 ::: Downloaded on - 22-07-2024 02:54:58 ::: Neutral Citation No:=2024:PHHC:087204 CRM-M-24617-2024 (O&M) earphone was recovered. All the jail inmates were searched and one mobile phone make Samsung, one Ba1eryand a SIM Card of Reliance Jio company were recovered from theunderwearof pe oner. Therea3er, the pe oner was interrogated upon which he disclosed that inmates Parvin Yadav and Rohit were also using the said mobile phone. When Rohit was subjected to ques oning, in order to pressurize the inquiry officials, he himself hit his head on the grill of the cell and injured himself and Naveen scuffled with other jail staff. On the basis of the facts narrated hereinabove men oned, the aforemen oned FIR was registered and inves ga ons were taken up in the ma1er.
4. That during the course of inves ga on, the site plan of the crime scene was prepared. The mobile phone, SIM card, charger, black colored earphone, photocopy of duty book, and history ckets of the prisoners were taken into police possession. The records pertaining to the WhatsApp messages were taken into police possession. Offences punishable under Sec ons 186, 332 & 353 IPC were introduced to the case during the course of inves ga on.
5. That during the course of further inves ga ons, the co- accused Vishal @ Toni was apprehended on 13.09.2023 upon receipt of secret informa on and he was associated with the inves ga on of the case. He was arrested upon receipt of appropriate incrimina ng evidence against him and he interroga on, whereby was subjected he to conceded his involvement in the commission of the present crime and suffered his disclosure statement to the said effect. On the basis of the inputs so received, offences punishable under Sec ons 120B, 467, 468 & 471 IPC were also introduced to the present case.
6. That in furtherance of the disclosure statement suffered by co-accused Vishal @ Tony, the co- accused Praveen @ Kali was apprehended and he was associated with the inves ga ons of the case and he was arrested upon receipt of appropriate incrimina ng evidence against him. He was also subjected to interroga on, and he conceded his involvement in the commission of the present crime and suffered his disclosure statement.3
3 of 10 ::: Downloaded on - 22-07-2024 02:54:58 ::: Neutral Citation No:=2024:PHHC:087204 CRM-M-24617-2024 (O&M)
7. That during the course of inves ga ons, Bhupender, the vic m-owner of the mobile phone, was joined in the inves ga ons of the case. The co-accused Vishal suffered his amended disclosure statement and he got recovered the mobile phone which belonged to Bhupender Rawat and the said mobile was being used by the accused Vishal without Bhupender's consent. It had transpired that the accused Vishal had deceived the vic m and had created a WhatsApp business account and consequently, offence punishable under Sec on 420 IPC was introduced to the case. The accused Vishal, upon receipt of OTP on Bhupender's phone had deleted the messages and accordingly the offence punishable under Sec on 201 IPC was also added to the case.
8. That on 15.09.2023, produc on warrant was got issued from the Ld. Court against the pe oner and on 18.09.2023 a produc on warrant against accused Rohit was got issued for 21.09.2023.
9. That on 21.09.2023, Rohit and the pe oner were associated with the inves ga on of the ease and they were arrested upon receipt of appropriate incrimina ng evidence against them. They were subjected to interroga on while being in custody and they suffered their respec ve disclosure statementsconceding their involvement in the commission of the present crime. They got the crime scene demarcated. The pe oner got recovered a mobile phone which was taken into police possession.
10. That during the course of further inves ga on, in order to nab their accomplices involved in the commission of the present crime, Rohit and the pe oner were taken Udaipur, Rajasthan where they suffered their amended disclosure statements and in furtherance thereof, the inves ga ng agency alongwith accused Rohit and the pe oner reached Shyamlaji, District Arawali, Gujarat. The accused Rohit and the pe oner kept on changing their stances and got recorded statements and their on amended disclosure 25.09.2023, raids conducted on the places of the accomplices and accused Praveen @ Amru was nabbed on 25.09.2023 from Rewari and he was also joined in the inves ga on 4 4 of 10 ::: Downloaded on - 22-07-2024 02:54:58 ::: Neutral Citation No:=2024:PHHC:087204 CRM-M-24617-2024 (O&M) of the upon incrimina ng receipt case and he was of appropriate evidence against him. He was interrogated while being in custody and he conceded his involvement in the commission of the crime and suffered his disclosure statement."
7. As per paragraph 1 of the bail pe%%on, the pe%%oner is in custody since 21.09.2023. Given the nature of allega%ons, the amount involved viz-a-viz pre-trial custody, coupled with the other factors peculiar to this case, there would be no jus%fiability for further pre-trial incarcera%on at this stage, subject to the compliance of terms and condi%ons men%oned in this order. Even a primafacie perusal of paragraph 5 of the bail pe%%on needs considera%on for bail.
8. 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 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 UMar 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 maMer and though that discre%on is unfeMered, it must be exercised judiciously, 5 5 of 10 ::: Downloaded on - 22-07-2024 02:54:58 ::: Neutral Citation No:=2024:PHHC:087204 CRM-M-24617-2024 (O&M) 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.
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. This order shall come into force from the %me it is uploaded on the official webpage of this Court.
11. 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.
[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 fiKng 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 6 6 of 10 ::: Downloaded on - 22-07-2024 02:54:58 ::: Neutral Citation No:=2024:PHHC:087204 CRM-M-24617-2024 (O&M)
(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/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 draW 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 aMendance 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.
(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 aMes%ng officer/court thinks appropriate or considers the accused as a flight risk.
3. Mobile number (If available) 7 7 of 10 ::: Downloaded on - 22-07-2024 02:54:58 ::: Neutral Citation No:=2024:PHHC:087204 CRM-M-24617-2024 (O&M)
4. E-Mail id (If available)
13. 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.
14. 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 acquiMal. 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 fiWeen 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 acquiMal 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.
15. Till the comple%on of the trial, the pe%%oner shall not contact, call, text, message, remark, stare, stalk, make any gestures or express any unusual or inappropriate, verbal or otherwise objec%onable behavior towards the vic%m and vic%m's family, either physically, or through phone call or any other social media, through any other mode, nor shall unnecessarily roam around the vic%m's home.
16. Given the nature of the allega%ons and the other circumstances peculiar to this case, the pe%%oner shall not enter the property, workplace, and the residence of the vic%m %ll the recording of the statements of all non-official and informal witnesses in the trial. This Court is imposing this condi%on to rule out any aMempt by the accused to incapacitate, influence, or cause any discomfort to the vic%m. Reference be made to Vikram Singh v Central Bureau of Inves%ga%on, 2018 All SCR (Crl.) 458); and Aparna BhaM v. The State of Madhya Pradesh, 2021:INSC:192, 2021 SCC Online SC 230.
88 of 10 ::: Downloaded on - 22-07-2024 02:54:58 ::: Neutral Citation No:=2024:PHHC:087204 CRM-M-24617-2024 (O&M)
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 aWer that in Sec%on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi%ons.
18. 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.
19. 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."
20. 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.
21. 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 aWer 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.
99 of 10 ::: Downloaded on - 22-07-2024 02:54:58 ::: Neutral Citation No:=2024:PHHC:087204 CRM-M-24617-2024 (O&M)
22. 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.
23. 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). 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.
24. 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 soW 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.
25. 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.
26. 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 a1est it to be a true copy. In case the a1es 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 a1es ng bonds.
Pe--on allowed in aforesaid terms. All pending applica%ons, if any, stand disposed.
(ANOOP CHITKARA)
JUDGE
05.07.2024
Jyo% Sharma
Whether speaking/reasoned: Yes
Whether reportable: No.
10
10 of 10
::: Downloaded on - 22-07-2024 02:54:58 :::