Vinod Kumar vs State Of H.P
2021 Latest Caselaw 626 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 64 of 2021 Reserved on: January 18, 2021.

.

Date of Decision: January 19, 2021.

    Vinod Kumar                                                             ...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. N.S. Chandel, Sr. Advocate with Mr. Vinod K. Gupta,
                             Advocate.

For the respondent: Mr. Bhupender Thakur, Deputy Advocate General with

Mr. Rajat Chauhan, Law Officer.

                             THROUGH VIDEO CONFERENCE


        FIR No.   Dated          Women Police Station                 Sections




        1/2021    2.1.2021       Hamirpur, Distt. Hamirpur            354A, IPC & 8 of
                                                                      POCSO Act





    Anoop Chitkara, Judge.

The petitioner, who is in judicial custody w.e.f. 7.1.2021 for sexually harrasing

a minor girl, has now come up before this Court under Section 439 of CrPC, seeking

regular bail, on the grounds that he is in custody for a considerable time.

2. The Petitioner straightaway filed the bail petition before High Court, which is

permissible given the decision of a three Judges Bench of HP High Court, in Mohan

Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15), wherein the Full Bench holds

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

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, Shri N.S. Chandel,

learned Senior Advocate, assisted by Shri Vinod Gupta, learned counsel for the bail

petitioner states on instructions that the petitioner has 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, a student of +2

informed the Women Police Station, Hamirpur that she is taking tuition. On

2.1.2021 at 1.30 p.m, when she was returning home from tuition, then a vehicle

stopped near her. The person driving the vehicle asked her the way, which leads to

village Jhaniara. Then the said vehicle left and after some time, returned and told the

minor that he could not find the way and he knows her father and as such, she can sit

in the vehicle. He further told her that he would drop her near her home. Then he

caught hold of her hand and said that her hands was very cold. The complainant

freed her hand from the petitioner but the petitioner caught hold of her arm and after

that, he fondled over her privates. On that, she cried but there was nobody nearby

but she was able to rescue herself and she pushed the petitioner towards one side and

opened the door of the vehicle and jumped out of the car as the car was moving at a

very low speed.

5. Ld. Counsel for the petitioner contends that incarceration before the proof of

guilt would cause grave injustice to the petitioner and his family.

6. On the contrary, Ld. Deputy Advocate General contends that the accused is a

proven habitual offender, and given his past conduct; he is likely to repeat the

offence. He further insists that if this Court is inclined to grant bail, then such a bond

must be subject to very stringent conditions.

7. An offence under Section 354A, IPC provides for maximum sentence, which

may extend up to three years. Similarly, Section 8 of POCSO Act prescribes the

.

maximum sentence of five years coupled with the fact that the petitioner is already in

jail for around two weeks.

8. Thus, 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 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. 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.

.

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 Hamirpur 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.

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 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 tLoadingamper 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.

14. 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.

15. During the trial's pendency, if the petitioner repeats or commits any offence

.

where Loadingthe 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 Cr.PC.

16. 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.

17. 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

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.

18. 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.

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

the investigating agency from further investigation per law.

20. 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.

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

.

accused shall also reciprocate through desirable behavior.

22. There would 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.

    January 19 2021 (mamta)
                          r              to                               (Anoop Chitkara)
                                                                            Vacation Judge.