Manish vs State Of H.P
2021 Latest Caselaw 787 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 151 of 2021 Reserved on: January 29, 2021.

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Date of Decision: February 2, 2021.

    Manish                                                           ...Petitioner.

                                    Versus





    State of H.P.                                                          ...Respondent.

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





    Whether approved for reporting?1 YES

    For the petitioner:    rMr. Anirudh Sharma, Advocate.

For the respondent: Mr. Sudhir Bhatnagar, Addl. A.G with Ms. Seema Sharma, Narinder Singh Thakur and Kamal Kant, Deputy

Advocate General & Mr. Manoj Bagga, Asstt. A.G.

                              THROUGH VIDEO CONFERENCE



        FIR No.   Dated          Police Station                        Sections
        5/21      17.1.2021      Women Police Station, Solan           363, 366, IPC




    Anoop Chitkara, Judge.

A boy aged 22 years, who is now in judicial custody, allegedly for sitting on a parapet with a girl aged 16 years, who had left her home on her own to go to the

temple and from where, according to her father, she was allured by the boy, has come up before this Court seeking regular bail.

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.

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

3. In Para 8 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the accused.

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4. Briefly, the allegations against the petitioner are that on 17.1.2021, the victim's

father informed the Women Police officers, Women Police Station, Solan, that the petitioner allured his daughter. The complainant further alleged that the victim, aged

16 years, studying in +1, had left her home for a temple at about 12.30 noon; however, she did not return home. Despite frantic search in the houses of the relatives and friends, she was nowhere to be traced. The complainant said that he had full belief that Manish (bail petitioner herein) had allured his daughter away.

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

5. After that, Police sprang into action and, without much loss of time, noticed

one boy and a girl sitting on a parapet on the side of the road. Subsequently, the

Police enquired from the victim in her mother's presence, and she said that there was no sexual assault. Thus, the Police did not take her for medical examination. However, very surprisingly, the Police arrested the accused, aged 22 years, on the

same day, and now, he is in judicial custody w.e.f. 17.1.2021.

6. Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and his family.

7. 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.

8. 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:

9. A perusal of the complaint reveals that the victim had gone on her own accord

to the temple. There is no averment that from the temple, the petitioner allured her

away. The only evidence is that the victim and the petitioner were found sitting on a

parapet. The petitioner, a boy of 22 years of age, has been languishing in jail since

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merely on this ground.

10. An analysis of the complaint reveals that the petitioner is the actual sufferer in

this case because he has been incarcerated solely for sitting in a public space with the

victim. The detrimental effects of incarceration on young boys and adolescent teens

are well known and require no mention. Further, there is no allegation of sexual

assault or violence against the petitioner. Hence, a case for grant of bail has been

forcefully made out, and denial would amount to grave injustice to the petitioner.

11. The incarceration of the accused on the perusal of the entire evidence available

is unjustified and will not achieve any significant purpose. 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. Twenty-five thousand (INR 25,000/-), and shall furnish two sureties of a similar amount, 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. Twenty-five thousand only (INR 25,000/-), made in favour of "Chief Judicial Magistrate, District Solan, H.P.,"

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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

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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.

16. 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.

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

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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. 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.

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 victim, at the earliest.

22. I express my gratitude to law intern Adv Sakshi Attri for outstanding assistance.

23. 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) Vacation Judge Feb 2, 2021 (mamta)