Surjeet Singh vs State Of H.P
2021 Latest Caselaw 861 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 103 of 2021 Reserved on: Jan 27, 2021.

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Date of Decision: Feb 4, 2021.

    Surjeet Singh                                           ...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:     Mr.Satyan Vaidya, Senior Advocate with Mr. Ajay
                            Kochhar and Mr. Gaurav, Advocate.

For the respondent: Ms. Seema Sharma, Dy.A.G with Mr. Shreyak Sharda, Sr.

Asstt. A.G and Mr. Manoj Bagga, Asstt. A.G.

                              THROUGH VIDEO CONFERENCE



        FIR No.   Dated         Police Station                      Sections
        70/2020   14.9.2020     Bhabanagar, Distt. Kinnaur          302, IPC




    Anoop Chitkara, Judge.

The petitioner, who has been arrested for giving a kick blow on the

abdomen of one Anant Kumar due to which he fell down on the road and next day,

when brought to the hospital, he died, which led to the registration of the aforesaid

FIR. The petitioner has come up before this Court seeking bail on the ground that it

is a case of culpable homicide.

2. Earlier, the petitioner had filed a petition under Section 439 CrPC before the

concerned Sessions Court. However, vide order dated 15.1.2021, learned Sessions

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

Judge, Kinnaur Session Division at Rampur Bushahr, HP, dismissed the petition as

not pressed.

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3. In Para 6 of the bail application, the petitioner declares having no criminal

history. The status report also does not mention any criminal past of the accused.

4. Briefly, the allegations against the petitioner are that on 13.9.2020 at 3.40 p.m.,

complainant Gulab Chand alongwith Ranbir, Anirudh, Ashwani Kumar, Surender

Kumar, Ramesh Kumar, Ram Lal, Arvind and Surjit Kumar were present at Kafnu

Bus Stand. At that time, Anand Kumar, who appeared to be under intoxication also

came there. On reaching, he started hurling abuses at Surjit Kumar relating to some

dispute about inheritance. After that, both of them caught hold of each other from

their neck. The complainant tried to intervene and separated them. However, after

some time, again they entered into a scuffle. Then again Ranjit, Anirudh and

Ashwani intervened and separated them and took Anand Kumar towards the shop of

one Amir Singh Lala. After that, Surjit Kumar also reached near the said shop and

again started quarreling with Anand Kumar. On this, Surjit Kumar got enraged and

became furious and gave a kick blow with force on the abdomen of Anand Kumar,

due to which he fell down on the road. He became unconscious and was taken to his

home. On the morning of 14.9.2020, because of pain in abdomen, Anand Kumar was

taken to MGMSC, Khaneri, Rampur, where he succumbed to the injuries. 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. 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

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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. As per status report, it is clear that the deceased Anand Kumar, who initiated

the aforesaid scuffle and it was he, who started hurling abuses. Subsequently, despite

separated them on two-three occasions, too without any pre-meditation and in the

heat of passion, Surjeet Kumar appears to have given a kick blow on the abdomen of

Anand Kumar. Instead of taking Anand Kumar to the hospital, his family members

took him to home and when on the next day, he was brought to the hospital, he died.

9. Given the undisputed fact that only one kick blow was administered on

abdomen, which led to death of Anand Kumar and coupled with the fact that the

accused-petitioner is already in jail for more than 4 months, further incarceration of

the petitioner is not justified.

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

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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

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, Kinnaur at Reckongpeo, 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.

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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:

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).

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[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.

17. The petitioner shall surrender all 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.

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

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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,

and any Advocate for the Petitioner can download this order 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)