P.O. Paprola vs The State Of Himachal Pradesh
2021 Latest Caselaw 3826 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

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ON THE 11TH DAY OF AUGUST, 2021

BEFORE

HON'BLE MR. JUSTICE ANOOP CHITKARA CRIMINAL MISC. PETITION (MAIN) No.1520 of 2021

Between:- r SH. NEERAJ KUMAR,

SON OF SH. SHYAM LAL, RESIDENT OF VILLAGE AND P.O. PAPROLA, TEHSIL BAIJNATH, DISTRICT KANGRA, H.P.,

AGED ABOUT 28 YEARS, OCCUPATION WORKER THROUGH HIS FATHER SHYAM LAL, SON OF

SH. PHILLA RAM, R/O VILLAGE AND

P.O. PAPROLA, TEHSIL BAIJNATH, DISTRICT KANGRA, H.P.

.....PETITIONER

(BY SH. MAAN SINGH CHANDEL, ADVOCATE)

AND

THE STATE OF HIMACHAL PRADESH.

.....RESPONDENT

(BY SH. NAND LAL THAKUR, ADDITIONAL ADVOCATE GENERAL, WITH SH. KUNAL THAKUR, DEPUTY

.

    ADVOCATE GENERAL,
     RAM LAL THAKUR AND SH. SUNNY
    DHATWALIA,        ASSISTANT        ADVOCATES





    GENERAL)

_____________________________________________

This petition coming on for orders this day, the

Court passed the following:

                       r        ORDER

    FIR          Dated     Police Station                 Sections
    No.


    80           11.03.20 Baddi, District Solan, 302, 147, 148,
                 20       H.P.                   149, 323 and
                                                 504 of IPC

The petitioner, incarcerating upon his arrest for

committing murder, has come up before this Court under

Section 439 of Cr.P.C, seeking regular bail.

2. Earlier, the petitioner had filed the following bail

petitions:

(a) Cr.MP(M) No.214 of 2021, filed by the petitioner before this Court, was withdrawn by him on 29.01.2021 and he was given liberty to file a fresh.

(b) Cr.MP(M) No.1371 of 2021, filed by the petitioner before this Court, was dismissed vide judgment dated

.

23.07.2021.

3. In Para -8 of the bail application, the petitioner

declares having no criminal history.

4. Briefly, the allegations against the petitioner are as

follows:

a) On 10th March, 2020, the Police station Baddi

received a telephonic information from the

Community Health Centre Nalagarh that some persons, who have received injuries in some

assaults, have come for treatment in this Hospital. A daily diary entry number 31 to this

effect was recorded in the police station. The

doctor examined the injured Ashish Kumar and recorded a medico-legal certificate.

b) The Police started the investigation and, on 11th March, 2020 at 3:50 p.m., recorded the statement of Aman Gupta under section 154 CrPC. He informed the Police that he worked as a supervisor nearby. On 10th March, 2020, i.e., yesterday, he was at his home due to the festival of Holi. He and his room partners,

namely Ashish, Roshan, Shesh Mani, and some other boys, were celebrating Holi. At around

.

1:30 p.m., few boys, names of two of whom

were Neeraj and Kapil, along with 6-7 more boys, reached there. All these boys were also

tenants nearby. At that time, the informant Aman Gupta and his friends were celebrating

Holi on the roof of their house. These outsider boys reached on the roof and started hurling abuses at them without any rhyme and reasons.

When they tried to stop them from hurling abuses, then they started beating them and gave kicks and fists blows to them. In the

meanwhile, Kapil picked up an iron rod, which was lying on the roof. Kapil inflicted a blow on

the head of Ashish with this Iron rod. All other

persons were giving beatings with fists and

kicks. On these allegations, the informant sought criminal prosecution and action against the assailants.

c) On 11th March, 2020, the Investigator recorded the statement of Javed Khan under 161 CrPC. The narration of the statement of Javed Khan recorded under section 161 CRPC is that on 10th March 2020, along with

his friends, namely Ashish, Aman Gupta, and some other friends, were present on the roof of

.

the house where they were celebrating Holi by

dancing and singing. At around 1.30 p.m., 6-7 boys and Neeraj and Kapil came there and

asked them to stop dance and singing. After that, they started beating them with fists and

kicks. In the meanwhile, Kapil (A-1) picked up a rod, which was lying on the slab, and hit it on the scalp of Ashish. All of them gave beatings

with fists, kicks to them. The Investigator also recorded the statements under section 161 CrPC of Sheshmani Prajapati, Roshan Lal. All

these versions were identical to that of Javed Khan.

d) The Investigator arrested Kapil. During

interrogation, Kapil made a disclosure

statement under section 27 of the Indian Evidence Act to point out where he had kept the iron rod. Subsequently, Kapil led the Police party and the witnesses and got recovered an iron rod.

e) On 15th March 2020, injured Ashish was taken to a hospital in Mohali Punjab. On 20th March, 2020 he was shifted to a hospital at Zirakpur,

and he went to another hospital at Zirakpur. On 3rd April, 2020, he was referred to the Post

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Graduate Institute of Medical Education and

Research, PGIMER, Chandigarh, where on 3 April 2020, he succumbed to the injury.

f) In PGI , post mortem examination of the body of the deceased was conducted. The doctors

noticed one injury on the scalp. According to the doctors, the cause of death was post- traumatic hydrocephalus as a complication of

traumatic brain injury, which was sufficient to cause death in an ordinary course of nature.

g) Due to the COVID-19 pandemic, a lockdown

was imposed. The Police officials were deployed for enforcement of curfew and thus

could not carry out the investigation. This was

bonafide, and none of the Police officials can

be blamed for the delay, which was beyond their control. After the partial lifting of the lockdown, the Investigator resumed the investigation, and on 10th August 2020, arrested the other accused persons A-2 to A-7.

h) Based on these allegations, the Police registered the FIR mentioned above.

5. Ld. Counsel for the petitioner contends that

incarceration before the proof of guilt would cause grave

.

injustice to the petitioner and family.

6. On the contrary, the contention on behalf of the

State is that if this Court is inclined to grant bail, then such a

bond must be subject to very stringent conditions.

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.

REASONING:

8. In the statement of Amit Kumar recorded under 154

section CrPC, on 11th March 2020, which led to the registration

of FIR, only Kapil (A-1) and Neeraj (A-2) were named, and

none of the other accused A-3 to A-7 were named. On the same

day, in the statements of Javed Khan, Shesh Mani Prajapati,

and Roshan Lal, none of them named any other accused except

Kapil (A-1) and Neeraj (A-2), petitioner herein. On 10th

.

August, 2020, Amit and Javed visited the Police station and

informed the Investigator that they have come to know about

the names of the boys who had accompanied Kapil(A-1) and

Neeraj (A-2). After that, the Investigator recorded their

supplementary statements under section 161 CrPC and arrested

the accused Pradeep (A-3), Pawan Kumar (A-4), Mithun alias

Mithu (A-5), Kashmir (A-6), and Gurmail Singh alias Raju

(A-7). In the statements recorded under section 154 CrPC and

161 CrPC, the witnesses did not name the accused A-3 to A-7.

After the partial lifting of the lockdown, they were arrested on

10th August, 2020. However, the accused were not subjected to

the Test Identification parade for the reasons best known to the

Investigator, SHO, and the Supervisory Officer.

9. A reading of FIR and other evidence explicitly

reveal that Neeraj Kumar, petitioner, did not cause fatal blow.

In fact, the occurrence happened spontaneously and, at this

stage, to assume that he had formed common intention at the

spot is not sufficient to deny him bail.

10. An analysis of entire evidence does not justify

.

further incarceration of the accused, nor is going to achieve any

significant purpose. Without commenting on the merits of the

case, the stage of the investigation and the period of

incarceration already undergone would make out a case for bail.

In the facts and circumstances peculiar to this case, the

petitioner makes out a case for release on bail.

11. Given the above reasoning, 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.

12. 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.

13. 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 only each (INR 20,000/-), to the

satisfaction of the Judicial Magistrate having the jurisdiction

over the Police Station conducting the investigation, and in case

of non-availability, any Ilaqa Magistrate. Before accepting the

sureties, the concerned Magistrate 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.

14. In the alternative, the petitioner may furnish

aforesaid personal bond and fixed deposit(s) for Rs. Ten

thousand (INR 10,000/-), made in favour of "Chief Judicial

Magistrate, District Solan, H.P,"

a) 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.

.

b) Such a fixed deposit need not necessarily be

made from the account of the petitioner and need not be a single fixed deposit.

c) 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.

d) If made online, then its printout, attested by any Advocate, and if possible, countersigned

by the accused, shall be filed, and the depositor shall get the online liquidation disabled.

e) 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.

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

g) 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.

.

h) 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.

15. The furnishing of the personal bonds 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

to 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.

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

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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

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Judicial custody for a period for which the

concerned Court may deem fit and proper to achieve the purpose.

16. Given the gravity of accusations and heinous

nature of offence, the petitioner shall surrender all

r to firearms, ammunition, if any, along with the arms license to

the concerned authority within 30 days from today.

However, subject to the provisions of the Indian Arms Act,

1959, the petitioner shall be entitled to renew and take it

back in case of acquittal in this case.

17. The petitioner shall neither stare, stalk, make any

gestures, remarks, call, contact, message the witnesses,

either physically, or through phone call or any other social

media, nor roam around the witnesses' homes.

18. 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.

19. Any advocate for the petitioner and the Officer in

whose presence the petitioner puts signatures on personal bonds

if not feasible, in Hindi.

r to shall explain all conditions of this bail order, in vernacular and

20. 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.

21. This order does not, in any manner, limit or restrict

the rights of the Police or the investigating agency from further

investigation per law.

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.

24. 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 victim, at the earliest. In case the

victim notices any objectionable behavior or violation of any

terms or conditions of this order, the victim may inform the

SHO of the concerned Police Station or the Trial Court or even

to this Court.

25. There would be no need for a certified copy of this

order for furnishing bonds. Any Advocate for the petitioner can

download this order along with the case status from the official

web page of this Court and attest it to be a true copy. In case

the attesting officer or the Court wants to verify the

authenticity, such an officer can also verify its authenticity and

may download and use the downloaded copy for attesting

bonds.

.

The petition stands allowed in the terms mentioned

above.

Copy Dasti.

Anoop Chitkara,

Judge August 11, 2021 (R.Atal)