Tek Chand vs State Of H.P
2021 Latest Caselaw 836 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 215 of 2021 Reserved on: Feb 1, 2021.

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Date of Decision: Feb 4, 2021.

    Tek Chand                                                              ...Petitioner.

                                          Versus





    State of H.P.                                                         ...Respondent.

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





    Whether approved for reporting?1 NO

For the petitioner: rMr. Ravinder Singh Chandel, Advocate.

For the respondent: Mr. Rajinder Dogra, Sr. Addl. Advocate General with Mr. Vikrant Chandel, Deputy Advocate General.

                           THROUGH VIDEO CONFERENCE



        FIR No. Dated           Police Station      Sections
        135/2020 23.8.2020      Theog, Shimla       279, 337, 338, 376, 417, IPC &
                                                    181, 192, 196, MV Act




    Anoop Chitkara, Judge.

An unmarried man aged 30 years, for establishing coitus with an

unmarried female aged 26 years, 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. The bail petition is silent about criminal history, however, Mr. Ravinder Singh Chandel Ld. 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

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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 23.8.2020, the police

received information about the accident of the victim, who was brought to IGMC. Upon that, the investigator reached IGMC and met her. Thereafter, the investigator recorded the statement of the victim under Section 154, Cr.PC. She informed the

investigator that two months ago, a boy named Sonu started talking to her on phone. He used to call her daily and they talked to each other for long time. Her siblings and mother were aware about this. She had even made her mother speak to Sonu on

phone. She further informed that yesterday, i.e., 22.8.2020, she without informing

her friend, went with Sonu on his motorcycle. While going to the house of Sonu, he lost the control of his bike, which fell down below the road. She received injuries and both of them came up on the road. In between, one car came there and the driver

of the car gave lift to them. On coming to know about the accident, the villagers gathered there and they told her that the real name of Sonu is Tek Chand. After that, they enquired from her about Tek Chand but he left. Subsequently, she came to

Fagu, where her mother and brother also came. After walking for some time, she started feeling pain at her back and as such, she was brought to IGMC. Based on

these allegations, the Police registered the FIR and commenced investigation.

5. The victim was discharged from the hospital on 12.9.2020. On 21.9.2020

when the police again enquired from her, then she told that because of injuries, she could not tell the reality and in fact, Sonu had misled her by saying that he works in Police and his mother was a teacher. He had promised to marry her. She further stated that one day, he took her to Solan and while returning back, they stayed in a hotel at Shogi, where against her will and consent, he established coitus with her.

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

7. On the contrary, the contention on behalf of the State is that the accused eloped with a minor and if this Court is inclined to grant bail, then such a bond must be subject to very stringent conditions.

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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. her actions.

The age of the victim is 26 years and she was matured enough to understand She had voluntarily gone with her to a hotel, where the accused

allegedly committed coiuts with her. After that, she kept quiet for a long time. Her

silence for a long time is not attributed to any shame. It is also not her case that because of 'me too movement' or intervention of any social activist, she thought of revealing her story. Although the accused would not have given his identity, but it

was for the victim not to establish coitus with him without proper verification. She was not a kid but a grown up woman.

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.

11. In the facts and circumstances peculiar to this case, the petitioner makes out a

case for release on bail.

12. 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.

13. 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.

14. 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

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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.

15.

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 Shimla, 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., Bank of America, Chase, HSBC, City Bank, 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.

16. The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:

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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 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.

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17. 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.

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, 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.

19. 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.

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

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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.

(Anoop Chitkara) Vacation Judge.

Feb 4, 2021 (mamta)