Punjab-Haryana High Court
Vikas Dutt vs State Of Punjab on 11 October, 2023
Author: Avneesh Jhingan
Bench: Avneesh Jhingan
Neutral Citation No:=2023:PHHC:132036
2023:PHHC:132036
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
(208) CRM-M-9392-2023 (O&M)
Date of decision:- 11.10.2023.
Vikas Dutt ...Petitioner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE AVNEESH JHINGAN
Present: Mr. Vishal Sodhi, Advocate
for the petitioner.
Mr. Sandeep Kumar, Deputy Advocate General, Punjab.
AVNEESH JHINGAN, J. (Oral)
1. This is second petition under Section 439 Cr.P.C is filed seeking regular bail in FIR No.98 dated 02.06.2021 under Sections 392, 342, 170 of Indian Penal Code, 1860 (offence under Section 395, 412, 120-B IPC added lateron) and under Sections 25 of Arms Act, 1959 registered at Police Station Dinanagar, District Gurdaspur.
2. Learned counsel for the petitioner claims parity with the co-
accused Amrinder Singh @ Raju who was granted bail by this Court vide order dated 22.05.2023, which is reproduced as under:-
FIR No. Dated Police Station Sections
98 02.06.2021 Dinanagar, 392, 342, 170, 148, 149, 412, 120-B,
District 450, 452, 395, 397 IPC and 25 of Arms
Gurdaspur Act
"1. The petitioner, incarcerating upon his arrest in the FIR captioned above, came up before this Court under Section 439 of Code of Criminal Procedure, 1973 (CrPC) seeking bail.
2. Petitioner's counsel prays for bail by imposing any stringent conditions. Petitioner contends that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family.
3. State opposes the bail.
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REASONING:
4. The petitioner and his accomplices had held the complainant and other family members on hostage and robbed all the marriage ornaments and cash on gunpoint.
5. As per paragraph 8 of the peon, the petitioner is in custody since 06.03.2021.
Although the offence is heinous, but given the pre-trial custody, coupled with the other factors peculiar to this case, there would be no justifiability for custodial or pre- trial incarceration at this stage, subject to the compliance of terms and conditions mentioned in this order. Furthermore, the petitioner is a first offender, and one of the relevant factors would be to provide an opportunity to course-correct.
6. In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Constutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying 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 entitled to bail if the Court concerned concludes that the prosecution 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 satisfaction for the need to release such person on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application. The courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situation. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noticeably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like by the petitioner who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh when considering the question 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 negave criteria necessitating 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 2 of 8 ::: Downloaded on - 12-10-2023 05:07:33 ::: Neutral Citation No:=2023:PHHC:132036 2023:PHHC:132036 CRM-M-9392-2023 3.
considerations. In Dataram Singh v State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously, compassionately, and in a humane manner. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
7. 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.
8. Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail, subject to the following 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.
9. In Mahidul Sheikh v. State of Haryana, CRM-33030- 2021 in CRA-S-363-2020, decided on 14-01-2022, Para 53, [Law Finder Doc Id # 1933969], this Court observed, [53]. The pragmatic approach is that while granting bail with sureties, the "Court" and the "Arresting Officer" should give a choice to the accused to either furnish surety bonds or to handover a fixed deposit, or direct electronic money transfer where such facility is available, or creating a lien over his bank account. The accused should also have a further option to switch between the modes. The option lies with the accused to choose between the sureties and deposits and not with the Court or the arresting officer.
10. Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above, in the following terms:
(a). Petitioner 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 satisfaction of the concerned court, and in case of non-availability, any nearest Illaqa Magistrate/duty 3 of 8 ::: Downloaded on - 12-10-2023 05:07:33 ::: Neutral Citation No:=2023:PHHC:132036 2023:PHHC:132036 CRM-M-9392-2023 4.
Magistrate. Before accepting the surety, the concerned court must satisfy that if the accused fails to appear in court, then such surety can produce the accused before the court.
OR
(b) Petitioner to hand over to the concerned court a fixed deposit for Rs. Ten Thousand only (INR 10,000/-), with the clause of automatic renewal of the principal and the interest reverting to the linked account, made in favor of the 'Chief Judicial Magistrate' of the concerned district. Said fixed deposit may be made from any of the banks where the stake of the State is more than 50% or any of the well-established and stable private sector banks. The fixed deposit need not necessarily be made from the petitioner's account.
(c). Such court shall have a lien over the deposit until the case's closure or discharged by substitution, or up to the expiry of the period mentioned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the entire amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.
(d). It shall be the total discretion of the petitioner to choose between surety bond and fixed deposit. It shall also be open for the petitioner to apply to the Investigator or the concerned court to substitute the fixed deposit with surety bonds and vice-versa.
(e). On the reverse page of personal bond, the petitioner shall mention her/his permanent address along with the phone number, preferably that number which is linked with the AADHAR, and e-mail (if any). In case of any change in the above particulars, the petitioner shall immediately and not later than 30 days from such modification, inmate about the change to the concerned police station and the concerned court.
(f). The petitioner is to also execute a bond for a attendance in the concerned court(s) as and when asked to do so. The presentation of the personal bond shall be deemed acceptance of the declarations made in the bail peon and all other stipulations, terms, and conditions of section 438(2) of the Code of Criminal Procedure, 1973, and also of this bail order.
11. 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 and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the 4 of 8 ::: Downloaded on - 12-10-2023 05:07:33 ::: Neutral Citation No:=2023:PHHC:132036 2023:PHHC:132036 CRM-M-9392-2023 5.
evidence.
12. Within fifteen days of release from prison, the petitioner shall procure a smartphone and inform its IMEI number and other details to the SHO/I.O. of the Police station mentioned above. The petitioner shall always keep the phone location/GPS on the "ON" mode. Whenever the Investigating officer asks to share the location, the petitioner shall immediately do so. The petitioner shall neither clear the location history, WhatsApp chats, call logs nor format the phone without permission of the concerned SHO/I.O. This condition shall continue ll the completion of the trial or closure of case, whichever is earlier.
13. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, ammunition, if any, along with the arms license to the concerned authority within fifteen days from release from prison and inform the Investigator about the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case, provided otherwise permissible in the concerned rules.
14. Till the completion of the trial, the petitioner shall not contact, call, text, message, remark, stare, stalk, make any gestures or express any unusual or inappropriate, verbal or otherwise objectionable behavior towards the victim and victim's family, either physically, or through phone call or any other social media, through any other mode, nor shall unnecessarily roam around the victim's home.
15. Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall not enter the property, workplace, and the residence of the victim and shall also not enter within a radius of one kilometer from the victim's home ll the recording of the statements of all non-official and informal witnesses in the trial. This Court is imposing this condition to rule out any attempt by the accused to incapacitate, influence, or cause any discomfort to the victim. Reference be made to Vikram Singh v Central Bureau of Invesgation, 2018 All SCR (Crl.)
458); and Aparna Bhatt v. State of Madhya Pradesh, 2021 SCC Online SC 230.
16. During the trial's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condition as stipulated in this order, it shall always be permissible to the respondent to apply for cancellation of this bail. It shall further be 5 of 8 ::: Downloaded on - 12-10-2023 05:07:33 ::: Neutral Citation No:=2023:PHHC:132036 2023:PHHC:132036 CRM-M-9392-2023 6.
open for any investigating agency to bring it to the notice of the Court seized of the subsequent application that the accused was earlier cautioned not to indulge in criminal activities. Otherwise, the bail bonds shall remain in force throughout the trial and after that in Section 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of conditions.
17. The conditions mentioned above imposed by this court are to endeavour that the accused does not repeat the offence and to ensure the safety of the witnesses, victim, and the society. In Mohammed Zubair v. State of NCT of Delhi, Writ Peon (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 conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed."
18. 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 any language that the petitioner understands.
19. If the petitioner finds bond amount beyond social and financial reach, it may be brought to the notice of this Court for appropriate reduction. Further, if the petitioner finds 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.
20. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation as per law.
21. In case the Investigator/Officer-In-Charge of the concerned Police Station arraigns another section of any penal offence in this FIR, and if the new section prescribes maximum sentence which is not greater than the sections mentioned above, then this bail order shall be deemed to have also been passed for the newly added section(s). However, suppose the newly inserted sections prescribe a sentence exceeding the maximum sentence prescribed in the 6 of 8 ::: Downloaded on - 12-10-2023 05:07:33 ::: Neutral Citation No:=2023:PHHC:132036 2023:PHHC:132036 CRM-M-9392-2023 7.
sections mentioned above, then, in that case, the Investigator/Officer-In-Charge shall give the petitioner notice of a minimum of seven days providing an opportunity to avail the remedies available in law.
22. 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, without any delay. If the victim(s) notice any violation of this order, they may inform the SHO of the concerned police station, the trial court, or even this court.
23. 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.
24. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.
25. 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 arrest 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.
Petition allowed in aforesaid terms. All pending applications, if any, stand disposed."
2. Reply filed, taken on record. Learned State Counsel though opposes the prayer for grant of bail, but is not in a position to distinguish the case of the petitioner qua the co-accused so far as grant of bail is concerned.
3. Without commenting upon the merits of the case, on the basis of parity of petitioner vis-a-vis co-accused so far as grant of bail is concerned and considering that the conclusion of investigation and trial is likely to take time, petitioner is granted bail subject to his furnishing bail bonds to the satisfaction of the Chief Judicial Magistrate/Duty Magistrate concerned.
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4. The petition is allowed.
5. Since the main case has been dismissed the pending application(s), if any is rendered infructuous.
(AVNEESH JHINGAN)
JUDGE
11th October, 2023
spn
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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