Mohit vs State Of H.P
2021 Latest Caselaw 2843 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No.779 of 2021 Reserved on: May 7, 2021

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                                     Date of Decision:       May 11, 2021





    Mohit                                                             ...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:
                         r   Mr. Karan Singh Kanwar, Advocate.

For the respondent: Mr. Nand Lal Thakur, Addl. Advocate General, Mr. Amit Dhumal, Dy. Advocate General and Mr. Manoj Bagga, Asstt. Advocate General, for the State.

                             THROUGH VIDEO CONFERENCE


        FIR No.     Dated         Police Station                        Sections




        11/2021     17.2.2021     Nahan, District Sirmour, H.P.         489B,    489A,C,D,
                                                                        120B and 201 of
                                                                        IPC





    Anoop Chitkara, Judge

A boy aged 23 years, who is in custody since 19-2-2021, for being part of

a racket for printing fake currency notes, has come up before this Court seeking regular bail.

2. Earlier, the petitioner had filed a petition under Section 439 Cr.PC before the concerned Sessions Court. However, vide order dated 24.3.2021, learned Special Judge-II, Sirmaur District at Nahan, H.P., dismissed the petition on the

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

grounds that there exists prima facie involvement of the accused and because the petitioner may abscond and flee away from the process of law.

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3. In Para 13 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 on 17.2.2021,

complainant Sunil Kumar Garg alongwith neighbors produced one person named Nikhil in Police Post, Gunnughat. Sunil Kumar informed the Police officials that he runs a shop and at around 8:00 p.m., two persons visited his shop and

purchased a photo-frame for Rs.300/-. They handed over a currency note of Rs.2,000/-. On touching the currency note, he realized that it was a fake note. On this, he called his neighbor to seek his opinion. On this, both the persons

started running away, however, they were able to nab one person whose name

was revealed as Nikhil whereas the other person named Atul was able to run away. Based on allegations, the Police registered the FIR mentioned above. After that at the instance of Nikhil, recovery of Printer, Computer, copying machine, etc., got effected from a room of a P.G. During investigation, Nikhil revealed the

name of present bail petitioner as a part of the gang.

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

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

6. On the contrary, the contention on behalf of the State is that if this Court is inclined to grant bail, then 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:

8. The allegations against the petitioner are based upon the statements of co-

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accused and recovery of some office automation gadgets like scanner, printer etc.

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. In the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail.

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 Sirmour, H.P.,"

a) Such Fixed deposits may be made from any of the banks where the

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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.

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

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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.

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.

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, it shall always be permissible to the respondent to

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apply for cancellation of this bail. It shall further be open for any investigating

agency to bring it to the notice of the Court seized of the subsequent application that the accused was earlier cautioned not to indulge in criminal activities.

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. In case of non-appearance, then irrespective of the contents of the bail

bonds, the petitioner undertakes to pay all the expenditure (only the principal amount without interest) that the Government(s) might incur to produce him before such Court, provided such amount exceeds the amount recoverable after

forfeiture of the bail bonds, and also subject to the provisions of Sections 446 &

446-A of CrPC. The petitioner's failure to reimburse shall entitle the trial Court to order the transfer of money from the petitioner's bank account(s). However, this recovery is subject to the condition that the expenditure incurred must be spent to trace the petitioner alone, and it relates to the exercise undertaken solely to arrest

the petitioner in that FIR, and that voyage was not for any other purpose/function what so ever.

20. 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.

21. 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.

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

or the investigating agency from further investigation per law.

23. 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.

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24. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

25. 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.

Copy Dasti.

(Anoop Chitkara), Judge.

May 11, 2021 (ks).