Punjab-Haryana High Court
Yadwinder Singh vs State Of Punjab on 5 February, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:016318
CRM-M-3274-2024
2024:PHHC:016318
IN THE HIGH COURT OF PUNJAB AND HARYANAAT CHANDIGARH
CRM-M-3274-2024
Decided on: 05.02.2024
Yadwinder Singh ...Pe oner
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Abhishek K. Premi, Advocate
for the pe oner.
Mr. Digvijay Nagpal, A.A.G., Punjab.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta on Sec ons
01 05.01.2024 Vigilance Bureau, 7 of PC Act (Amendment)
Bathinda Act, 2018
1. The pe oner, apprehending arrest in the FIR cap oned above has come up before this Court under Sec on 438 CrPC seeking an cipatory bail.
2. In paragraph 17 of the bail applica on, the accused declares that he has no criminal antecedents. However, 21 years ago, FIR No.177 dated 23.09.2002 under Sec on 15 of NDPS Act was registered in which he was acquiCed by the trial Court vide order dated 25.02.2005.
3. The pe oner was posted as ASI at Mansa. Complainant Balkar Singh alleged that on 21.09.2023 at 9.30 PM, he was going back with Shubham and Babbu aDer seEng up a DJ program stage in a pickup vehicle. Shubham was driving the vehicle. When they reached a place known as Tinkoni at Mansa, ASI Afzaal Ahmad Ghori, ASI Yadvinder Singh (pe oner), and other traffic employees stopped them. They suspected Shubham to have consumed alcohol, and they checked his breath from the alcometer. ADer that, they told him that he would have to pay a fine (challan) of Rs.22,000/- because he was driving while drunk. They also kept the vehicle's registra on cer ficate and asked him to return at 10 o'clock the next day. However, on the spot, they did not fill out the Challan form, nor did they get the signatures of the complainant or the driver, Shubham, on that day. Instead of going on the following day, which would fall on 22.09.2023, the complainant went to meet the pe oner on 29.09.2023, and on reaching there, the ASI Afzaal Ahmad Ghori pointed his finger towards ASI Yadvinder Singh (pe oner) to speak 1 1 of 8 ::: Downloaded on - 08-02-2024 00:37:49 ::: Neutral Citation No:=2024:PHHC:016318 CRM-M-3274-2024 2024:PHHC:016318 with him. On this, ASI Yadvinder Singh (pe oner) demanded Rs.7000/- from the complainant for challan, and on nego a ons, they agreed to seCle the amount for Rs.5000/-. However, the complainant, Balkar Singh, was recording the conversa on on the memory card of his mobile phone. ADer recording the conversa on, he informed the police officials, which led to registering the FIR cap oned above.
4. I have heard counsel for the par es, gone through the pleadings, and heard audio clippings on the digital device of my law researcher, and its analysis would lead to the following outcome.
5. Neither the complaint nor the audio recording men ons the actual payment of a bribe. Even the State did not explicitly point out that the complainant, Balkar Singh, had actually paid a bribe of Rs.5000/-. The audio conversa on points out that although there is a demand of Rs.7000/- which is reduced to Rs.5000/-, the complainant said that he did not have the money at the me because he was earning Rs.400/- per day as a daily wager and in fact, there is no audio recording or averment of actual payment of money.
6. Despite ini ally finding that Shubham- the driver of the vehicle, was under the influence of alcohol while driving the vehicle, which is a severe offense, and aDer taking out the challan slip and keeping it pending by the police officials, indeed points towards an agenda of extrac ng money by the police officials which is corroborated from the evidence that aDer Challan they did not fill in the challan form taken on 21.09.2023. They had explicitly asked the driver to contact them the next day, i.e., 22.09.2023 at 10 o'clock. However, instead of going on 22.09.2023, the complainant met them aDer a me lag of a week, i.e., on 29.09.2023. They had kept the challan papers blank even for such a long period. On this ground, State counsel seeks dismissal of the bail; however, when the police officials are func oning like this, it is for the concerned DGP to look into the maCer on how to set their house in order.
7. As far as custodial interroga on or pre-trial incarcera on of the pe oner is concerned, it is not a case for pre-trial incarcera on because firstly, the complainant, without offering any explana on, did not go to collect his papers for one week, and secondly, there is no allega on of actual payment of a bribe to the pe oner.
8. The State counsel's other opposi on to bail is that these traffic employees demanded bribes. State counsel opposed the bail because these traffic police officials usually demand bribes, and this me, there is evidence against these officials. However, the pe oner's bail cannot be rejected on this ground. It is for the State Government and senior police officers to find ways to curb this menace; simply because their system 2 2 of 8 ::: Downloaded on - 08-02-2024 00:37:50 ::: Neutral Citation No:=2024:PHHC:016318 CRM-M-3274-2024 2024:PHHC:016318 is not adequately supervised or is defec ve is not grounds to deny bail to the pe oner.
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 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 UCar 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 maCer and though that discre on is unfeCered, 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. 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 Sec on 438 of the Code, the 3 3 of 8 ::: Downloaded on - 08-02-2024 00:37:50 ::: Neutral Citation No:=2024:PHHC:016318 CRM-M-3274-2024 2024:PHHC:016318 Court is duty-bound to strike a balance between the individual's right to personal freedom and the right of inves ga on of the police. While exercising utmost restraint, the Court can impose condi ons countenancing its object as permissible under the law to ensure an uninterrupted and unhampered inves ga on.
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.
12. In Madhu Tanwar 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 fiEng 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 Inves gator/SHO, before whom the bonds are required to be furnished. When the bonds are to be furnished before a Judicial Magistrate, then in case of the non-availability of the concerned Judicial Magistrate, to any other 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.4
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(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 draD favouring concerned Chief Judicial Magistrate for a 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 aCendance 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 court aCes ng the bonds thinks appropriate or considers the accused as a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
14. The pe oner 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 evidence.5
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15. 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 or in earlier orders. 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.
16. The pe oner is directed not to keep more than one prepaid SIM, i.e., one pre- paid mobile phone number, ll the conclusion of the trial; however, this restric on is only on prepaid SIMs [mobile numbers] and not on post-paid connec ons or landline numbers. The pe oner must comply with this condi on within fiDeen days of release from today. The concerned DySP shall also direct all the telecom service providers to deac vate all prepaid SIM cards and prepaid mobile numbers issued to the pe oner, except the one that is men oned as the primary number/ default number linked with the AADHAAR card and further that ll the no objec on from the concerned SHO, the mobile service providers shall not issue second pre-paid SIM/ mobile number in the pe oner's name. Since, as on date, in India, there are only four prominent mobile service providers, namely BSNL, Airtel, Vodafone-Idea, and Reliance Jio, any other telecom service provider are directed to comply with the direc ons of the concerned Superintendent of Police/Commissioner of Police, issued in this regard and disable all prepaid mobile phone numbers issued in the name of the pe oner, except the main number/default number linked with AADHAR, by taking such informa on from the pe oner's AADHAR details or any other source, for which they shall be legally en tled by this order. This condi on shall con nue ll the comple on of the trial or closure of the case, whichever is earlier. In Vernon v. The State of Maharashtra, 2023 INSC 655, [para 45], while gran ng bail under Unlawful Ac vi es (Preven on) Act, 2002, Supreme Court had directed imposi on of the similar condi on, which reads as follows, "(d) Both the appellants shall use only one Mobile Phone each, during the me they remain on bail and shall inform the Inves ga ng Officer of the NIA, their respec ve mobile numbers."
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 aDer that in Sec on 437-A of the Cr.P.C., if not canceled due to 6 6 of 8 ::: Downloaded on - 08-02-2024 00:37:50 ::: Neutral Citation No:=2024:PHHC:016318 CRM-M-3274-2024 2024:PHHC:016318 non-appearance or breach of condi ons.
18. The condi ons men oned above imposed by this Court are to endeavour that the accused does not repeat the offence and to provide vic m a sense of security. 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 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 aDer 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). 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. 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.
24. In return for the protec on from incarcera on, the Court believes that the accused shall also reciprocate through desirable behavior.
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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.
26. Pe&&on allowed in aforesaid terms. All pending applica ons, if any, stand disposed.
27. It is clarified that the grant of this bail would not imply that departmental ac on cannot be taken against the pe oner, and it would be for the concerned police officials to look into the maCer and take a final call within a reasonable period in accordance with the concerned rules and if the rules do not prescribe any me period than not later than six months from today. The observa ons made hereinabove are only to adjudicate the bail applica on and not for any other purpose and shall not be considered by anybody, including the trial Court.
(ANOOP CHITKARA)
JUDGE
05.02.2024
Jyo Sharma
Whether speaking/reasoned: Yes
Whether reportable: YES.
Neutral Citation No:=2024:PHHC:016318
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