Himachal Pradesh High Court

Varsha Sharma And Others vs State Of H.P on 20 January, 2021

Bench: Anoop Chitkara

                                                 1




         IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                  Cr.MP(M) No. 84 of 2021
                                  Date of Decision: 20.1.2021.




                                                                         .

    Varsha Sharma and others                                              ...Petitioners

                                  Versus





    State of H.P.                                                        ...Respondent.

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





    Whether approved for reporting?1NO

    For the petitioner:   rMr. Ashok Kumar Sharma, and Mr.Y. Paul, Advocates

    For the respondent: Mr. Bhupender Thakur, Gaurav Sharma and Ms. Divya
                        Sood, Deputy Advocates General and Mr. Rajat Chauhan,

                        Law Officer, for the respondent-State


        FIR No. Dated           Police Station                       Sections


        171/2020 28.8.2020      Hamirpur                             3(1)(r) of SC & ST
                                                                     Act, 1989 and 66(c)
                                                                     of the IT Act




    Anoop Chitkara, Judge (Oral)

The petition has been filed under Section 438, Cr.PC. Mr. Y Paul, learned

counsel for the petitioners had submitted yesterday and again requests that in fact, he

wanted to file this petition under Section 439, Cr.PC, but inadvertently, Section 438,

Cr.PC was mentioned.

2. Given above, necessary corrections be made and this petition be treated as

petition under Section 439, Cr.PC.

3. Petitioners, on being arraigned as accused of commission of offences

punishable under the Scheduled Caste & Scheduled Tribes (Prevention of Atrocities)

Act, 1989, for the commission of cognizable and non-bailable offences has come up

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

under section 439 of the Code of Criminal Procedure, 1973, seeking permission to

surrender before this Court, and simultaneously seeking release on ad-interim bail.

4. 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 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.

5. The bail petition is silent about criminal history, however, the

petitioners, who are present in Court, state that they do not have any criminal

past.

6. Briefly, the allegations against the petitioner are using derogatory

words prohibited under the Scheduled Caste & Scheduled Tribes (Prevention

of Atrocities) Act, 1989. The matter pertains to dispute between husband and

wife, which has taken the commission of Atrocities Act. The husband

belongs to Scheduled Caste community, whereas the wife and obviously her

parents belong to General Caste. Now, the husband has levelled allegations of

objectionable comments against wife, which form an offence under

Scheduled Caste & Scheduled Tribes (Prevention of Atrocities) Act, 1989.

7. The contents of FIR/status report reveal that the petitioner stands

arraigned as an accused for the commission of Non-bailable offences.

8. In Ami Chand v. State of H.P., CrMPM 1116 of 2020, Para 65, this

Court held that in the absence of any riders or restrictions under S. 439 CrPC,

any person accused of a non-bailable offence, under any penal law, including

the violations under the Scheduled Caste & Scheduled Tribes (Prevention of

Atrocities) Act, 1989, can apply under section 439 CrPC, offering to

surrender and simultaneously seeking interim bail. On receipt of such

application, the Court is to satisfy that the applicant stands arraigned as an

accused in a FIR disclosing Non-Bailable offences. If all these parameters are

complete, then the Courts are under an obligation to accept surrender. Since

custody is a sine qua non for considering a bail application, the Court is under

an obligation to consider the prayer for interim bail after this deemed custody.

All such pleas fall under the scope of S. 439 CrPC itself, and there is no need

to invoke S. 482 CrPC. After that, granting or refusing interim bail is a

Judicial function.

9. The accused/petitioners are present in Court and have offered to

surrender, which is accepted, and thus, are in deemed custody of the Court.

10. The Counsel for the petitioner contends that the complainant made

false and exaggerated allegations invoking SCSTPOA, with a view to deprive

the opportunity of S. 438 CrPC.

11. 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. (Applicable in case of criminal history). He

further contends that the accused is a proven habitual offender, and given his

past conduct; he is likely to repeat the offence.

12. It is a matrimonial relation, which has gone wrong and now the

husband is levelling allegations on being disrespected on account of his

belonging to Scheduled Caste category. Initially, the girl married him

knowingly that he belongs to Scheduled Caste. Thus, there is no justification

for incarceration at this stage. Even there is no allegation that parents of the

gril were instrumental in breaking the marriage for the reasons that the

husband belongs to Scheduled Caste.

13. 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 where 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.

14. 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.

15. Given the above reasoning, coupled with the peculiar facts and

circumstances of the case, 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.

16. 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.

17. The petitioners 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/-) each, to the satisfaction of the Registrar (Judicial)/ Additional

Registrar (Judicial), or any such officer as may be authorised in this behalf by

any of the Registrars of this Court.Given the conduct of the petitioner to offer

surrender before this Court, shows that such an accused did not try to

abscond, hence there is no need for surety bonds.

18. 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) Once the trial begins, the petitioners shall not, in any manner, try to delay the proceedings, and undertake 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 petitioners also promise 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 petitioners 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 petitioners 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 petitioners 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 petitioners 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 petitioners 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 petitioners fail to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.

iii.

Finally, if the petitioners still fail to put in an appearance, in that

eventuality, the concerned Court may issue Non-Bailable Warrants to procure the petitioners' presence and may send the petitioners to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.

19. Any Advocate for the petitioners and the Officer in whose presence

the petitioners put signatures on personal bonds shall explain all conditions of

this bail order, in vernacular and if not feasible, in Hindi.

20. In case the petitioners find 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 petitioners 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