Gurnam Singh vs State Of H.P
2021 Latest Caselaw 912 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 126 of 2021 Reserved on: January 29, 2021.

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Date of Decision: February 4, 2021.

    Gurnam 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:  rMr. O.C. Sharma, Advocate.

For the respondent: Mr. Sudhir Bhatnagar, Addl. Advocate General with Ms. Seema Sharma, Narender Singh Thakur, Kamal Kant,

Deputy Advocate General and Mr. Manoj Bagga, Asstt. A.G.

THROUGH VIDEO CONFERENCE

Anoop Chitkara, Judge.

The petitioner, who is in custody in FIR No.299 dated 22.9.2020, under

Sections 307 and 120B of IPC and Section 25, 25(6)-54-59 of Arms Act registered in

Police Station, Nalagarh, District Solan, H.P, has come up before this Court seeking

regular bail.

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

the concerned Sessions Court. However, vide order dated 24.11.2020, Ld. Additional

Sessions Judge, Nalagarh, District Solan, HP, dismissed the petition.

3. In Para 9 of the bail application, it is mentioned that certain FIRs have

been registered against the petitioner and the trial of the same is pending

adjudication. Although a number of cases are pending against the petitioner, but the

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

same are minor. The status report also does not object to bail due to the pendency of

any case.

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4. Ld. Counsel for the petitioner contends that incarceration before the

proof of guilt would cause grave injustice to the petitioner and family.

5. 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.

6. The co-accused namely Dharminder Singh @ Sodhi, Maninder Pal @

Prince and Sandeep Kaushal have been released on bail by the learned Additional

Sessions Judge, Nalagarh, District Solan in Bail Application Nos.19-NL/22 of 2021,

21-NL/22 of 2021 and 22-NL/22 of 2021 respectively. The case of the petitioner is

not at all on higher pedestal or graver than the cases of the co-accused, who stand

released on bail. As such, on this count, the petition is allowed.

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. 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.

9. 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.

10. 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

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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.

11. 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.,"

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.

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12. 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.

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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.

13. 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.

14. 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.

15. 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.

16. 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.

17. This order does not, in any manner, limit or restrict the rights of the Police or

the investigating agency from further investigation per law.

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18. 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.

19. In return for the protection from incarceration, the Court believes that the

accused shall also reciprocate through desirable behavior.

20. 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.

21. 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)