Date Of Decision: February 4 vs State Of Himachal Pradesh
2021 Latest Caselaw 884 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.94 of 2021 Reserved on: January 21, 2021.

.

Date of Decision: February 4, 2021.

Rinku Kumar ...Petitioner.

Versus

State of Himachal Pradesh ...Respondent.

Coram:

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

Whether approved for reporting?1 NO

For the petitioner: Mr. Rajesh Mandhotra, Advocate.

For the respondent: Mr. Narender Guleria & Mr. Vikas Rathore, Additional Advocate Generals, Mr. Bhupinder Thakur, Mr. Gaurav Sharma and Ms. Divya Sood, Deputy Advocate Generals,

for the State.

                             THROUGH VIDEO CONFERENCE





        FIR No. Dated           Police Station                Sections
        86    of 20.8.2020      Gaggal, District Kangra, H.P. 376D, 366, 506,, 34
        2020                                                  and 120B of IPC.





    Anoop Chitkara, Judge.

The petitioner, being a Manager of the hotel, who did not make entries

about the accused taking the hotel room on rent wherein they brought a female aged

32 years and committed rape upon her, incarcerating upon his arrest, has come up

before this Court seeking regular bail.

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

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

concerned Sessions Court. However, vide order dated 13.1.2021, learned Additional

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Sessions Judge-I, Kangra at Dharamshala, H.P., dismissed the petition on the grounds

that the bail petitioner has intentionally allowed the accused to enter the room,

knowing fully well that the victim was brought to the room by the other persons.

3. In Para 5 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 the victim who is a

married lady aged 32 years, complained to the police of being raped by seven

persons. The investigation revealed that some of the accused had brought the victim

to the hotel room in Mcleodganj where even they committed rape upon her. The

investigation further revealed that the petitioner who was a Manager in the said hotel

did not make entries in the hotel register about the room being let out to the accused

and thus was arrested.

5. Mr. Rajesh Mandhotra, learned counsel for the petitioner contends that

incarceration before the proof of guilt would cause grave injustice to the petitioner

and his 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.

REASONING:

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8. The allegations against the petitioner are of not making entries in the register of

the hotel. Given the fact that the accused is a first offender and given the age of the

victim, not making entries might be to deprive the owner of the hotel of making

money or in connivance of the hotel owner to deprive the government of the taxis,

cannot be ruled out. That being so, there is no justification for re-trial or

incarceration, coupled with the fact that the petitioner is in judicial custody for

sufficiently long time in comparison to the allegations leveled against him.

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. While granting bail to the present petitioner, any further discussion about the

evidence may cause prejudice to the prosecution or the victim. As such, this Court is

refraining itself to discuss the same.

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

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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, District Kangra, 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

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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). [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

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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 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

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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. 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.

February 4, 2021 (ks).