Jitender Singh vs State Of H.P
2021 Latest Caselaw 851 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.132 of 2021

.

                                               Reserved on: 27.01.2021





                                               Date of Decision: 04.02.2021


    Jitender Singh                                                   ...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. Deepak Kaushal, Advocate.

    For the respondent:         Mr.    Sudhir    Bhatnagar,   Additional
                                Advocate General with       Ms. Seema


                                Sharma, Deputyh Advocate General and
                                Mr. Shriyek Sharda, Senior Assistant
                                Advocate General and Mr. Manoj Bagga,
                                Assistant Advocate General.






                         THROUGH VIDEO CONFERENCE

        FIR      Dated        Police Station                     Sections
        No.





        19       12.3.2015    Kalaamb,             District 407 of IPC
                              Sirmour, HP

    Anoop Chitkara, Judge.

The petitioner, who has been named as co-accused by the

main accused, has come up before this Court under Section 439 of

Cr.P.C, seeking regular bail.

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

2. Earlier, the petitioner had filed a petition for bail before

.

the concerned Chief Judicial Magistrate, who enlarged the petitioner

on bail. But later on, petitioner did not appear before the Court and

for violation of terms and conditions of bail, non-bailable warrant has

been issued against him.

3. Para-5 of the bail petition and status report mentions

the following criminal history:

a) FIR No. 651 dated nil, registered under Sections 25, 29-

6185 of NDPS Act in Police Station Sadar Thanesar, District

Kurukshetra, Haryana.

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

police had arrested the main accused somewhere in the year 2015 for

selling goods from the vehicles, which led to registration of

aforementioned FIR. During interrogation, he revealed involvement of

petitioner, Jitender Kumar. Despite many efforts, he could not be

arrested, later on, investigator came to know that he was under

arrest at Kurukshetra for having committed offence under the NDPS

Act.

5. Ld. Counsel for the petitioner contends that 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.

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.

8. This FIR is prior in time to the NDPS Act, wherein

petitioner is in custody, as such, as far as this matter is concerned,

he cannot be termed as habitual offender. Given the fact and nature

of offence and fact that the petitioner cannot be termed as proclaimed

offender and in fact he was already under custody in another case,

there is no justification for further incarceration in the present case.

9. 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.

10. 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.

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 theCourt,

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

Sirmour, 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.

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 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. 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. In case of non-appearance, then irrespective of the

contents of the bail bonds, the petitioner undertakes to pay all the

expenditure (only the principal amount without interest) that the

Government(s) might incur to produce him before such Court,

provided such amount exceeds the amount recoverable after

forfeiture of the bail bonds, and also subject to the provisions of

Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse

shall entitle the trial Court to order the transfer of money from the

petitioner's bank account(s). However, this recovery is subject to the

condition that the expenditure incurred must be spent to trace the

petitioner alone, and it relates to the exercise undertaken solely to

arrest the petitioner in that FIR, and that voyage was not for any

other purpose/function what so ever.

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. 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. 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.

24. 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. r Anoop Chitkara,

Vacation Judge.

February 4, 2021 (R.Atal)