Kanav vs State Of H.P
2021 Latest Caselaw 1185 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 278 of 2021 Date of Decision: 23.02.2021

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    Kanav                                                         ...Petitioner





                                Versus

    State of H.P.                                              ...Respondent

    Coram:

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

Whether approved for reporting?1NO ____________________________________________________________________

For the petitioner: Mr. Anil Kumar, Advocate, vice Mr. Vijay

Bir Singh, Advocate.

For the respondent: Mr. Nand Lal Thakur, Additional Advocate General with Mr. Ram Lal Thakur, Assistant Advocate General and Mr. Rajat

Chauhan, Law Officer.

                         THROUGH VIDEO CONFERENCE

        FIR     Dated         Police Station            Sections





        No.
        07      20.01.2021    Indora,    District 147, 148, 149, 452
                              Kangra, H.P.        307 and 325 of IPC





                                                  and Section 25-54-59
                                                  of Arms Act.

    Anoop Chitkara, Judge.

                   For   accusations     of   attacking     the     house       of    the

complainant, injuring his father, ransacking the house and beating

the family members, the petitioner, who is now apprehending arrest,

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

has come up before this Court under Section 438 CrPC, seeking

anticipatory bail. Vide order dated 04.01.2021, this Court had

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granted interim protection, directing him to join investigation, which

he did.

2. A perusal of the petition reveals that the petitioner

straightaway filed the bail petition before High Court, which is

permissible given the decision of a three Judges Bench of HP High

Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15),

wherein the Full bench holds that a person can directly apply for an

anticipatory bail or regular bail to the High Court without first

invoking the jurisdiction of the Sessions Judge.

3. The bail petition is silent about criminal history,

however, learned counsel for the bail petitioner states on instructions

that the petitioner has no criminal past relating to the offences

prescribing sentence of seven years and more, or when on conviction,

the sentence imposed was more than three years. The status report

also does not mention any criminal past of the accused.

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

19.01.2021, police recorded statement of Ravi Kumar, under Section

154 of Cr.P.C. He has stated that, he is resident of village Pind, PO

Padhyan, PO Bhogrvan, Tehsil Indora, District Kangra, HP. In the

Panchayat elections, he alongwith his family members and friends

were supporting Jaydeep Rana for the post of Up Pradhan and

wholeheartedly canvassed for him. In the evening, after the voting

had come to an end, they came to their home. Result came and

candidate Jaydeep was elected as Up Pradhan. At 10:40 p.m. outside

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the gate of his house, three vehicles stopped and people got down from

the same. They started hurling abuses. When his father opened the

gate, then one of the persons from outside opened fire and his father

received bullet on his chest. When he alongwith his family members

came out, they noticed Digvijay Singh, Rikki, Bhuvesh, Vishal, Ankit,

Bony, and Dikshant, all residents of Bhogrvan and some other

persons, who hurled abuses and gave beatings to his father. These

persons entered the house and gave beatings to the ladies also. On

hearing commotion, Bhagu Husain and Akshay reached at the spot

and rescued them from those persons. All these persons ran away

after hurling abuses. They nursed old enmity with the family. Based

on these allegations, the Police registered the FIR mentioned above.

Injured was taken to CHC Indora, where MO confirmed that the

injury had been caused due to a bullet shot. During investigation, police

arrested Bhuvnesh, Dikshant and Nitin. The victim is still under

treatment at Pathankot. When the injured were brought to hospital,

then again accused persons attacked the victim, as a result of which,

he and his son Prithvi Singh again received injuries, for which again

FIR No.9 dated 20.01.2021 under Sections 323, 147, 149 and 504

IPC was registered against the accused. This entire occurrence was

recorded in CCTV.

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

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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.

7. In Cr.MP(M) No.139 of 2021, photographs of Ravi

Kumar, Prithvi and other persons have been placed on record, all of

whom are carrying gun and are armed. A perusal of the photographs

from Page 7 to 22 reveals the love towards arms and deadly weapon

of the members of the complainant party. He further refers to his

petition, wherein it is mentioned that one FIR was initially lodged on

behalf of the accused, which is FIR No.8 of 2021 in police station

Indora, against the complainant and his brother and this is a counter

blast to the said FIR.

8. Given the fact that FIR No.8 of 2021 dated 19.1.2021,

was also registered at the behest of the accused against the

complainant and now FIR No.7 of 2021 was also registered at the

behest of the complainant against the accused. Simply because the

FIR against the petitioner is prior in time, would not rule out quarrel

between the parties. Given the fact that quarrel had taken place

between two groups after the elections and it is difficult to find out at

this stage that who instigated the said quarrel. There is no

justification to send the petitioner in custody. In the facts and

circumstances peculiar to this case, the petitioner makes out a case

for release on bail.

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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 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

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another.

12. Given above, the petitioner shall be released on bail in

the FIR mentioned above, subject to his furnishing a personal bond of

Rs. Twenty-five thousand (INR 25,000/-), and shall furnish two

sureties of a similar amount, 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 aforesaid

personal bond and fixed deposit(s) for Rs. Twenty-five thousand only

(INR 25,000/-), made in favour of "Chief Judicial Magistrate, District

Kangra, H.P.,"

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

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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 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 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

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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 neither stare, stalk, make any gestures,

remarks, call, contact, message the complainant and his family members, either physically, or through phone call or any other social media, nor roam around their home and workplace. The petitioner shall also not contact them.

e) 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.

f) 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.

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15. The petitioner shall surrender all firearms, ammunition,

if any, along with the arms license to the concerned authority on or

before 20th March 2021. In case the petitioner is not having any arm

licence or arm, then he shall file declaration before the SHO

concerned without any loss of time and in case he has arms, then he

shall surrender the same on or before 20.03.2021 and inform the

concerned SHO about this on or before 22.3.2021 and if SHO does

not receive any communication on behalf the petitioner, then he

shall file an application for cancellation of bail before this Court. This

Court, given the fact that neither the complainant nor accused

deserve to possession any arm or licence. 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.

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, the

State may move an appropriate application before this Court, seeking

cancellation of this bail. 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.

17. 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.

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18. 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.

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

rights of the Police or the investigating agency from further

investigation per law.

20. 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. In case the victim notices stalking or any violation of this

order, he may either inform the SHO of the concerned Police Station

or the Trial Court or even to this Court.

21. 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.

22. In return for the protection from incarceration, the Court

believes that the accused shall also reciprocate through desirable

behavior.

23. 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

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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.

Anoop Chitkara, Judge February 23, 2021 (R.Atal)