Pradeep Chand vs State Of Himachal Pradesh
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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.165 of 2021 Reserved on: January 28,2021.

.

Date of Decision: February 4, 2021.

Pradeep Chand ...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. Vinod Suman, Advocate.

For the respondent: Mr. Sudhir Bhatnagar, Additional Advocate General with Ms. Seema Sharma & Mr. Narinder Thakur, Dy. Advocate Generals and Mr. Manoj Bagga, Assistant Advocate

General, for the State.

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        FIR No.   Dated          Women        Police Sections
                                 Station
        1 of 2021 3.1.2021       Solan,      District 498A, 506 and 34 of the Indian
                                 Solan, H.P.          Penal Code.





    Anoop Chitkara, Judge.

Apprehending arrest for indulging in cruelty and intimidating the complainant,

her brother-in-law, petitioner herein, came up before this Court under Section 438

CrPC, seeking anticipatory bail.

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

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

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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.

3. The bail petition is silent about criminal history, however, Mr. Vinod Suman,

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 more,

or when on conviction, the sentence imposed was more than three years.

4. Briefly, the allegations against the petitioner are the complainant informed

SHO, Women Police Station, Solan that she was married to Kamal Dutt, on

20.4.2019, as per Hindu Rites and Rituals in Solan. After marriage, her husband and

in-laws started misbehaving with her and would not talk to her. Even during the

ceremonies of marriage, the in-laws misbehaved with the relatives of the

complainant. After 6-7 days, her husband told her that she was not a good girl and

seemed to have an affair before marriage. He snatched her Mangal Sutra and in the

scuffle she also sustained injures. Her mother-in-law also sided with him. They

tortured her emotionally and physically and told that they had married her for dowry

which she had not brought in. The allegations in the complaint are made in length,

but the same are not necessary to discuss at this stage, except that her dowry articles

were kept by her husband and in-laws. Based on these allegations, the Police

registered the FIR mentioned above.

5. Learned counsel for the petitioner contends that during interim bail, the

petitioner joined the investigation, and custodial investigation would serve no

purpose whatsoever. The incarceration before the proof of guilt would cause grave

injustice to the petitioner and family.

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6. On the contrary, Learned Additional Advocate General contends that if this

Court is inclined to grant bail, then such a bond must be subject to very stringent

conditions.

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

case for release on bail.

8. In the present case, the maximum sentence imposable for the offences

mentioned in FIR attracts the application of the directions passed in Arnesh Kumar

v. State of Bihar, (2014) 8 SCC 273, (Para 13), wherein Hon'ble Supreme Court

directed all the State Governments to instruct its police officers not to arrest

automatically when the offence is punishable with imprisonment for a term which

may be less than seven years or which may extend to seven years; whether with or

without fine.

9. Given the above reasoning, the Court is granting bail to the petitioner, subject

to the condition that the petitioner shall fascilitate the recovery of the ornaments

which the complianant alleged to be in their possession, with further 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.

10. 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.

11. Given above, the petitioner shall be released on bail in the FIR

mentioned above, subject to 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 Investigator. Before accepting the sureties, the

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Attesting Officer 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.

12. 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) The arresting Officer shall give a time of ten working days to enable the

accused to prepare a fixed deposit.

b) 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.

c) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

d) 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.

e) 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.

f) 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.

g) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

h) 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.

i) 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.

13. 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 in 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.

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.

18. 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 complainant and

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the victim, at the earliest. In case the victim notices stalking or any violation of this

order, she may either inform the SHO of the concerned Police Station or the Trial

Court or even to this Court.

19. 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.

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

accused shall also reciprocate through desirable behavior.

21. 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 along with case status

from the official web page of this Court and attest it to be a true copy. In case the attesting officer 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.

Copy Dasti.

Anoop Chitkara, Vacation Judge.

February 4, 2021 (ks).