Sharma Ram vs State Of Himachal Pradesh
2021 Latest Caselaw 3583 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.1529 of 2021

Reserved on: August 5, 2021.

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Date of Decision: August 5, 2021.

    Sharma Ram                                                        ...Petitioner.





                                       Versus

    State of Himachal Pradesh                                        ...Respondent.

    Coram:





    The Hon'ble Mr. Justice Anoop Chitkara, Judge.

    Whether approved for reporting?1NO

    For the petitioner:       Mr. Ashwani Kaundal and Mr. Rahul Thakur, Advocates.

For the respondent: Mr. Nand Lal Thakur Additional Advocate General, Mr. Kunal Thakur, Dy. Advocate General and Mr. Sunny Dhatwalia, Assistant Advocate General, and Mr. Rajat Chauhan Law Officer.

                              THROUGH VIDEO CONFERENCE




        FIR No.      Dated         Police Station         Sections
        44 /2021     23.7.2021     Sujanpur, District 363,        354(A),    506   IPC    and





                                   Hamirpur, H.P.         Section 8 of POCSO Act.





    Anoop Chitkara, Judge.

For eloping a minor girl, the petitioner now apprehending arrest came up before this Court under Section 438 CrPC, seeking anticipatory bail.

2. Earlier, the petitioner had filed the following bail petition:

(a) Bail Application No. 59 of 2021, dismissed by Special Judge-II, Hamirpur, H.P., on 3.8.2021.

Whether reporters of Local Papers may be allowed to see the judgment?

3. In Para 9 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the accused.

4. Briefly, the allegations against the petitioner are that on 23.7.2021, the

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complainant accompanied by her father gave a written complaint to the Police

Station to the effect that the accused had allured his daughter aged 18 years. Based on this, the Police registered the FIR mentioned above. Subsequently, the victim was traced and at that time she stated that the accused had taken her alongwith him and

had also pressed her breast. In further investigation, the complainant informed the Police that he had wrongly got recorded the age of his daughter as 18 years and in fact her age is 13 years. Based on these allegations, the Police registered the FIR

mentioned above.

5. Ld. Counsel for the petitioner contends that during interim bail, the petitioner joined the investigation, and custodial investigation would serve no purpose whatsoever. The incarceration before the proof of guilt would cause grave injustice

to the petitioner and family.

6. While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to very stringent conditions.

REASONING:

7. The petitioner has joined the investigation. Undisputedly, he is the first offender. Given the nature of allegations, sending him to incarceration, at this stage,

would not serve any purpose whatsoever. Suffice it to say that reasonable conditions

may be imposed and he may be asked to stay away from the victim and not to contact her.

8. Under no circumstances, the conduct of the petitioner is condonable or

forgivable if proven to be true. However, a limited question before this Court is to grant bail or not. These observations nowhere suggest his innocence or lesser role.Without commenting on the case's merits and the circumstances peculiar to this case, the petitioner makes a case for release on bail.

9. 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. 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 Section 438 of the Code, the Court is duty-bound to

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strike a balance between the individual's right to personal freedom and the right of

investigation of the police. While exercising utmost restraint, the Court can impose conditions countenancing its object as permissible under the law to ensure an uninterrupted and unhampered investigation.

10. Given the above reasoning, coupled with the peculiar facts and circumstances of the case, the Court is granting bail to the petitioner, subject to strict 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.

11. In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that any Court granting bail with sureties should give a choice to the accused to either furnish surety

bonds or give a fixed deposit, with a further option to switch over to another.

12. The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Ten thousand (INR 10,000/-), and shall furnish two sureties of Rs. Twenty-five thousand (INR 25,000/-) each, to the

satisfaction of the Investigator. Before accepting the sureties, the Attesting Officer must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, keeping in mind the Jurisprudence

behind the sureties, which is to secure the presence of the accused.

13. In the alternative, the petitioner may furnish a personal bond of Rs. Ten thousand (INR 10,000/-), and fixed deposit(s) for Rs. Ten thousand only (INR 10,000/-), made in favour of Chief Judicial Magistrate of the concerned District.

a) The arresting Officer shall give a time of ten working days to enable the accused to prepare a fixed deposit.

b) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account.

c) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

d) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.

e) If made online, then its printout, attested by any Advocate, and if

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possible, countersigned by the accused, shall be filed, and the depositor shall

get the online liquidation disabled.

f) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such

information be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR number.

g) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

h) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for

substitution of fixed deposit with surety bonds and vice-versa.

i) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the

expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged by substitution as the case may be.

14. The furnishing of the personal bond shall be deemed acceptance of the

following and all other stipulations, terms, and conditions of this bail order:

a) The petitioner to execute a bond for attendance in the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay the proceedings, and undertakes to appear before the concerned Court

and to attend the trial on each date, unless exempted. In case of an appeal, on this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall immediately and not later than 30 days from such modification, intimate about

the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

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c) 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 of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to

tamper with the evidence.

d) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the

investigation at all further stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail. Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall not

be subjected to third-degree, indecent language, inhuman treatment, etc.

e) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of summons, bailable and non-bailable warrants the accused through E-Mail (if

any), and any instant messaging service such as WhatsApp, etc. (if any). [Hon'ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July

10, 2020]:

i. At the first instance, the Court shall issue the summons. ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable

warrants.

iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.

15. The petitioner shall neither stare, stalk, make any gestures, remarks, call, contact, message the victim, either physically, or through phone call or any

other social media, nor roam around the victim's home.

16. The petitioner should stay far away from the place of occurrence while on bail. Thus, the petitioner shall not enter within a radius of one kilometre from

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her house. This Court is imposing this condition to rule out any attempt by the

accused to incapacitate, influence, or to cause any discomfort to the victim. Reference be made to Vikram Singh v Central Bureau of Investigation, 2018 All SCR (Crl.) 458); and Aparna Bhatt v. State of Madhya Pradesh, 2021 SCC Online

SC 230.

17. 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 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

continue to remain in force throughout the trial and after that in terms of Section 437-

A of the CrPC.

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 vernacular and if not feasible, in Hindi.

19. In case the petitioner finds the 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 per law.

21. 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, at the earliest, and not later than two days. In case the victim notices stalking or any violation of this order, she may either inform the SHO of the concerned Police Station or the Trial Court or even to this Court.

22. 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.

23. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

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24. 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 attest 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.

In the facts and circumstances peculiar to this case, the petition is allowed in the terms mentioned above.

Copy Dasti.

Anoop Chitkara, Judge.

August 5, 2021 (ks).