Punjab-Haryana High Court
Dharamraj vs State Of Haryana on 2 April, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:043947
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CRM-M-60127-2023 2024:PHHC:043947
215 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRM-M No.60127 of 2023
Date of Decision: 02.04.2024
Dharamraj ...Pe((oner
Versus
State of Haryana ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. R.S. Rai, Senior Advocate with
Mr. Sourabh Arora, Advocate
for the pe''oner.
Mr. Rajat Gautam, Addl. A.G.,Haryana.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta(on Sec(ons
0239 31.07.2020 Badshahpur, 147, 148, 149, 323, 325, 341,
District Gurugram 342, 427 and Sec'ons 364
186 and 353, IPC added later
on
1. The pe''oner incarcerated in the FIR cap'oned above has come up before this Court under Sec'on 439 CrPC seeking bail.
2. In paragraph 22 of the bail applica'on, the accused declares the following criminal antecedents:
Sr. No. FIR No. Date Offences Police Sta'on
1. 111/2021 2021 Under Sec'on 174A Shivaji Nagar, District
Gurugram
3. Case of the prosecu'on are that the present FIR was registered on the basis of the complaint made by the complainant namely Lukman son of Bilal, resident of Village Ghasera, Police Sta'on Nuh, Mewat. The complainant stated that on 31.7.2020, he was going to Masjid Gurugram in a vehicle pick up registra'on no. HR-38Z-6280, having the meat of buffalow in the same. When he reached near the red light of Sector-5/6, nearly 10/15 persons came from the back side on 4/5 motor cycles and compelled him to stop his vehicle. Complainant was later taken by those persons towards Sohna. When they reached near jail turn Badshahpur, they started badly bea'ng him and even the glasses 1 1 of 8 ::: Downloaded on - 04-04-2024 00:59:10 ::: Neutral Citation No:=2024:PHHC:043947 2 CRM-M-60127-2023 2024:PHHC:043947 of vehicle pick up were broken and completely damaged by them. Later, the police reached at the spot and the police officials took the complainant to Government Hospital, Sector-10, Gurugram in an injured condi'on. On this complaint, a case under Sec'ons 147, 148, 149, 323, 325, 341, 342, 364, 427, 186, 353 of IPC was registered.
4. Pe''oner's counsel prays for bail by imposing any stringent condi'ons including surrender of fire-arms, and are also voluntarily agreeable to the condi'on that 'll the conclusion of the trial, the pe''oner shall keep only one mobile number, which is men'oned in AADHAR card, if any, and within fiCeen days undertakes to disconnect all other mobile numbers. The pe''oner contends that the pre-trial incarcera'on would cause an irreversible injus'ce to the pe''oner and family. Counsel for the pe''oner submits that ini'ally the pe''oner was granted interim relief by this Court, but later on that order was set aside by Hon'ble Supreme Court vide judgment dated 29.08.2023 and he was directed to surrender and to apply for regular bail.
5. By way of filing reply dated 01.04.2024 and custody cer'ficate dated 01.04.2024, the State counsel opposes the bail and contends that given the criminal past, the accused is likely to indulge in crime once released on bail. He further submits that the pe''oner also violated the order of Hon'ble Supreme Court and surrendered aCer the period granted by the Apex Court.
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 acquiLal 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.
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 acquiLal or discharge, or when Courts quashed the FIR; the prosecu'on stands withdrawn, or 2 2 of 8 ::: Downloaded on - 04-04-2024 00:59:11 ::: Neutral Citation No:=2024:PHHC:043947 3 CRM-M-60127-2023 2024:PHHC:043947 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. As per paragraph 17 of the bail pe''on, the pe''oner has surrendered before the Court on 03.10.2023 and is in custody since then. Given the allega'ons involved viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allega'ons, and the other factors peculiar to this case, he voluntarily surrendered before the trial Court, there would be no jus'fiability for further pre-trial incarcera'on at this stage. Thus, the previous criminal history of the pe''oner is not being considered strictly at this stage as a factor for denying bail. Furthermore, a prima facie perusal of paragraph 19 of the bail pe''on reveals sufficient grounds for gran'ng 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 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 ULar 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 3 3 of 8 ::: Downloaded on - 04-04-2024 00:59:11 ::: Neutral Citation No:=2024:PHHC:043947 4 CRM-M-60127-2023 2024:PHHC:043947 maLer and though that discre'on is unfeLered, 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.
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.
[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 4 4 of 8 ::: Downloaded on - 04-04-2024 00:59:11 ::: Neutral Citation No:=2024:PHHC:043947 5 CRM-M-60127-2023 2024:PHHC:043947
(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 draC 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 aLendance 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 aLes'ng officer/court thinks appropriate or considers the accused as a flight risk.
3. Mobile number (If available) 5 5 of 8 ::: Downloaded on - 04-04-2024 00:59:11 ::: Neutral Citation No:=2024:PHHC:043947 6 CRM-M-60127-2023 2024:PHHC:043947
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.
15. 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 aCer that in Sec'on 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condi'ons.
16. The condi'ons men'oned above imposed by this Court are to endeavour that the accused does not repeat the offence. 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." 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."
17. Given the nature of 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 30 days from the date of release and inform 6 6 of 8 ::: Downloaded on - 04-04-2024 00:59:11 ::: Neutral Citation No:=2024:PHHC:043947 7 CRM-M-60127-2023 2024:PHHC:043947 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 acquiLal in this case.
18. 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 fiCeen days of release from prison. 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."
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 aCer 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.
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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 what is prescribed for 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.
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
02.04.2024
Sonia Puri
Whether speaking/reasoned: Yes
Whether reportable: No.
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