Kulwant Kaur v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH CRA-S-861-2023 Date of Decision: 23.03.2023 Kulwant Kaur ....Appellant

Versus

State of Punjab

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. R.S. Athwal, Advocate for the appellant.

Mr. Harsimar Singh Si#a, DAG, Punjab.

**** FIR No.

Dated Police Sta.on Sec.ons 11.01.2023 Goraya, Police District Jalandhar 3(1) of SC and ST (Rural), District Jalandhar (Preven2on of Atroci2es), Act, 1989 CIS No. BA-328-2023 Criminal Case no.

before trial Court CNR No. PBJL010006362023 Date of Order: 19.01.2023 Aggrieved by the dismissal of his bail under sec2on 438 CrPC, the accused has come up before this court by filing an appeal under sec2on 14-A of Scheduled Caste & Scheduled Tribes (Preven2on of Atroci2es) Act, 1989, (SCSTPOA), seeking bail. 2.

The appellant had filed a bail applica2on before the Addi2onal Sessions Judge-Icum-FTC, which was dismissed on 19.01.2023. 3.

In Prathvi Raj v. Union of India, AIR 2020 SC 1036, a three-judge bench of Supreme Court read down S. 18 by declaring as follows, [10]. Concerning the applicability of provisions of sec2on 438 Cr.PC, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the Act of 1989, the bar created by sec2on 18 and 18A (i) shall not apply.

4.

In paragraph 16 of the appeal, the accused declares that he has no criminal antecedents.

5.

The allega2ons are abusing the people belonging to the scheduled castes by using the derogatory words prohibited under the Scheduled Caste & Scheduled Tribes (Preven2on of Atroci2es) Act, 1989 (SCSTPOA). 6.

The appellant's conten2on is that the custodial inves2ga2on would serve no purpose whatsoever, and the pre-trial incarcera2on would cause an irreversible injus2ce to the appellant and family.

7.

State opposes the bail.

REASONING:

8.

On primafacie analysis of the nature of allega2ons and other factors peculiar to this case, there would be no jus2fiability for custodial or pre-trial incarcera2on at this stage. Furthermore, the appellant a first offender, and one of the relevant factors would be to provide an opportunity to course-correct. Even a primafacie perusal of paragraph 8 of the bail appeal needs considera2on for bail. 9.

In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Cons2tu2onal Bench of Supreme Court held that the bail decision must enter the cumula2ve effect of the variety of circumstances jus2fying the grant or refusal of bail. In Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are en2tled to bail if the Court concerned concludes that the prosecu2on has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its sa2sfac2on for the need to release such person on bail, in the given fact situa2ons. The rejec2on of bail does not preclude filing a subsequent applica2on.

The courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situa2on. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court no2ceably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances sugges2ve of fleeing from jus2ce or thwar2ng the course of jus2ce or crea2ng other troubles in the shape of repea2ng offences or in2mida2ng witnesses and the like by the appellant who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the appellant to avoid the course of jus2ce and must weigh when considering the ques2on of jail. So also, the heinousness of the crime.

In Gudikan2 Narasimhulu v Public Prosecutor, (1978) 1 SCC 240, (Para 16), Supreme Court held that the delicate light of the law favors release unless countered by the nega2ve criteria necessita2ng that course. In Prahlad Singh Bha2 v NCT, Delhi, (2001) 4 SCC 280, Supreme Court highlighted one of the factors for bail to be the public or the State's immense interest and similar other considera2ons.

State of U#ar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is en2rely within the discre2on of the judge hearing the ma#er and though that discre2on is unfe#ered, it must be exercised judiciously, compassionately, and in a humane manner. Also, condi2ons for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory. 10.

The possibility of the accused influencing the inves2ga2on, tampering with evidence, in2mida2ng witnesses, and the likelihood of fleeing jus2ce, can be taken care of by imposing elabora2ve and stringent condi2ons. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Cons2tu2onal Bench held that unusually, subject to the evidence produced, the Courts can impose restric2ve condi2ons.

11. Without commen2ng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons men2oned above, the appellant makes a case for bail, subject to the following terms and condi2ons, which shall be over and above and irrespec2ve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973. 12.

In Mahidul Sheikh v. State of Haryana, CRM-33030-2021 in CRA-S-363-2020, decided on 14-01-2022, Para 53, [Law Finder Doc Id # 1933969], this Court observed, [53].

The pragma2c approach is that while gran2ng bail with sure2es, the "Court" and the "Arres2ng Officer" should give a choice to the accused to either furnish surety bonds or to handover a fixed deposit, or direct electronic money transfer where such facility is available, or crea2ng a lien over his bank account. The accused should also have a further op2on to switch between the modes. The op2on lies with the accused to choose between the sure2es and deposits and not with the Court or the arres2ng officer. 13.

Given above, provided the appellant is not required in any other case, the appellant shall be released on bail in the FIR cap2oned above, in the following terms: (a). Appellant to furnish personal bond of Rs. Ten thousand (INR 10,000/-); AND (b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the sa2sfac2on of the concerned inves2gator/SHO. Before accep2ng the surety, the concerned officer must sa2sfy that if the accused fail to appear in court, then such surety can produce such accused before the court.

OR (b) Appellant to hand over to the concerned inves2gator/SHO a fixed deposit for Rs. Ten Thousand only (INR 10,000/-), with the clause of automa2c renewal of the principal and the interest rever2ng to the linked account, made in favour of the 'Chief Judicial Magistrate' of the concerned district. The fixed deposit may be made from any of the banks where the stake of the State is more than 50% or any of the well-established and stable private sector banks. The fixed deposit need not necessarily be made from the appellant's account.

(c). In case of the launching of the prosecu2on, the said fixed deposit be forwarded to the concerned court along with the police report/challan under 173 CrPC. (d). Such court shall have a lien over the deposit un2l the case's closure, or discharged by subs2tu2on, or up to the expiry of the period men2oned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the en2re amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor. (e). It shall be the discre2on of the appellant to choose between surety bonds and fixed deposits. It shall also be open for the appellant to apply to the Inves2gator or the concerned court to subs2tute the fixed deposit with surety bonds and vice-versa. (f).

On the reverse page of personal bond, the appellant shall men2on her/his permanent address along with the phone number, preferably that numbers which is linked with the AADHAR, and e-mail (if any). In case of any change in the above par2culars, the appellant shall immediately and not later than 30 days from such modifica2on in2mate about the change to the concerned police sta2on and the concerned court.

(g). The appellant is to also execute a bond for a#endance in the concerned court(s) as and when asked to do so. The presenta2on of the personal bond shall be deemed acceptance of the declara2ons made in the bail appeal and all other s2pula2ons, terms, and condi2ons of sec2on 438(2) of the Code of Criminal Procedure, 1973, and also of this bail order.

14.

The appellant is directed to join the inves2ga2on within seven days and also as and when called by the Inves2gator. The appellant shall be in deemed custody for Sec2on 27 of the Indian Evidence Act. The appellant shall join the inves2ga2on as and when called by the Inves2ga2ng Officer or any Superior Officer; and shall cooperate with the inves2ga2on at all further stages as required. In the event of failure to do so, it will be open for the prosecu2on to seek cancella2on of the bail. Whenever the inves2ga2on occurs within the police premises, the appellant shall not be called before 8 AM, let off before 6 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

15.

The appellant 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 and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.

16.

During the trial's pendency, if the appellant repeats or commits any offence where the sentence prescribed is more than seven years or violates any condi2on as s2pulated in this order, it shall always be permissible to the respondent to apply for cancella2on of this bail. It shall further be open for any inves2ga2ng agency to bring it to the no2ce of the Court seized of the subsequent applica2on that the accused was earlier cau2oned not to indulge in criminal ac2vi2es. Otherwise, the bail bonds shall remain in force throughout the trial and aYer that in Sec2on 437-A of the Cr.P.C., if not

canceled due to non-appearance or breach of condi2ons. 17.

The condi2ons men2oned above imposed by this court are to endeavour that the accused does not repeat the offence and to ensure the safety of the witnesses, vic2m, and their families. In Mohammed Zubair v. State of NCT of Delhi, Writ appeal (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail condi2ons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be propor2onal to the purpose of imposing them. The courts while imposing bail condi2ons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condi2ons that would result in the depriva2on of rights and liber2es must be eschewed." 18.

Any Advocate for the appellant and the Officer in whose presence the appellant puts signatures on personal bonds shall explain all condi2ons of this bail order in any language that the appellant understands.

19.

If the appellant finds bond amount beyond social and financial reach, it may be brought to the no2ce of this Court for appropriate reduc2on. Further, if the appellant finds bail condi2on(s) as viola2ng fundamental, human, or other rights, or causing difficulty due to any situa2on, then for modifica2on of such term(s), the appellant may file a reasoned applica2on before this Court, and aYer 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 condi2on.

20. This order does not, in any manner, limit or restrict the rights of the Police or the inves2ga2ng agency from further inves2ga2on as per law. 21.

In case the Inves2gator/Officer-In-Charge of the concerned Police Sta2on arraigns another sec2on of any penal offence in this FIR, and if the new sec2on prescribes maximum sentence which is not greater than the sec2ons men2oned above, then this bail order shall be deemed to have also been passed for the newly added sec2on(s). However, suppose the newly inserted sec2ons prescribe a sentence exceeding the maximum sentence prescribed in the sec2ons men2oned above, then, in that case, the Inves2gator/Officer-In-Charge shall give the appellant no2ce of a minimum of seven days providing an opportunity to avail the remedies available in law.

22. Any observa2on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments. 23.

In return for the protec2on from incarcera2on, the Court believes that the accused shall also reciprocate through desirable behavior.

24.

The SHO of the concerned police sta2on or the inves2ga2ng officer shall arrange to send a copy of this order, preferably a soY copy, to the complainant and the vic2m, without any delay. If the vic2m(s) no2ce any viola2on of this order, they may inform the SHO of the concerned police sta2on, the trial court, or even this court. 25.

There would be no need for a cerfied copy of this order for furnishing bonds, and any Advocate for the Appellant can download this order along with case status from the official web page of this Court and a est it to be a true copy. In case the a esng officer wants to verify the authencity, such an officer can also verify its authencity and may download and use the downloaded copy for a esng bonds.

Appeal allowed in aforesaid terms. All pending applica2ons, if any, stand disposed. (ANOOP CHITKARA) JUDGE 23.03.2023 Jyo2-II Whether speaking/reasoned:

Yes Whether reportable:

No.