Jadvinder Singh v. State Of Punjab
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH CRM-M-17964-2023 Date of Decision: 17.04.2023 Jadvinder Singh ...PeƟƟoner
Versus
State of Punjab
...Respondent
CORAM:
HON'BLE MR. JUSTICE ANOOP CHITKARA
Present:
Mr. NiƟn Narula, Advocate for the peƟƟoner.
Mr. Harsimar Singh SiƩa, DAG, Punjab.
**** ANOOP CHITKARA, J.
FIR No.
Dated Police StaƟon SecƟons 19.02.2023 Bhindi Saidan, District 61/1/14 of Excise Act, 1914 Amritsar Rural 1.
The peƟƟoner apprehending arrest in the FIR capƟoned above, has come up before this Court under SecƟon 438 CrPC seeking anƟcipatory bail. 2.
In paragraph 8 of the bail peƟƟon, the accused declares that he has no criminal antecedents.
3.
PeƟƟoner's counsel prays for bail by imposing any stringent condiƟons. PeƟƟoner's counsel argued that the custodial invesƟgaƟon would serve no purpose whatsoever, and the pre-trial incarceraƟon would cause an irreversible injusƟce to the peƟƟoner and family.
4.
While opposing the bail, State's counsel contends that the accused is likely to indulge in crime once released on bail.
REASONING:
5.
The allegaƟons are transporƟng alcohol, which is the State's privilege, without paying the revenue and in violaƟon of the State's Excise Policy. 6.
Given the sentence prescribed, the nature of evidence, and other factors and circumstances peculiar to this case, it may be appropriate to afford the peƟƟoner a final opportunity to course-correct.
7.
In the present case, the maximum sentence imposable for the offences menƟoned in FIR does not exceed seven years. Thus, direcƟons passed in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, (Para 13), apply to this peƟƟon, wherein Hon'ble
Supreme Court directed all the State Governments to instruct its police officers not to arrest the accused automaƟcally 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.
8.
The possibility of the accused influencing the invesƟgaƟon, tampering with evidence, inƟmidaƟng witnesses, and the likelihood of fleeing jusƟce, can be taken care of by imposing elaboraƟve and stringent condiƟons. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the ConsƟtuƟonal Bench held that unusually, subject to the evidence produced, the Courts can impose restricƟve condiƟons. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, Supreme Court holds that while exercising power Under SecƟon 438 of the Code, the Court is duty-bound to strike a balance between the individual's right to personal freedom and the right of invesƟgaƟon of the police. While exercising utmost restraint, the Court can impose condiƟons countenancing its object as permissible under the law to ensure an uninterrupted and unhampered invesƟgaƟon. 9.
Without commenƟng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons menƟoned above, the peƟƟoner makes a case for bail, subject to the following terms and condiƟons, which shall be over and above and irrespecƟve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973. 10.
In Mahidul Sheikh v. State of Haryana, Neutral CitaƟon No: 2022:PHHC:003277, [Para 53], [Law Finder Doc Id # 1933969], this Court observed, [53]. The pragmaƟc approach is that while granƟng bail with sureƟes, the "Court" and the "ArresƟng 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 creaƟng a lien over his bank account. The accused should also have a further opƟon to switch between the modes. The opƟon lies with the accused to choose between the sureƟes and deposits and not with the Court or the arresƟng officer. 11.
Given above, provided the peƟƟoner is not required in any other case, the peƟƟoner shall be released on bail in the FIR capƟoned above, in the following terms: (a). PeƟƟoner 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 saƟsfacƟon of the concerned invesƟgator/SHO. Before accepƟng the surety, the concerned officer must saƟsfy that if the accused fail to appear in court, then such surety can produce such accused before the court.
OR (b) PeƟƟoner to hand over to the concerned invesƟgator/SHO a fixed deposit for Rs. Ten Thousand only (INR 10,000/-), with the clause of automaƟc renewal of the principal and the interest reverƟng 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 peƟƟoner's account.
(c). In case of the launching of the prosecuƟon, 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 unƟl the case's closure, or discharged by subsƟtuƟon, or up to the expiry of the period menƟoned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the enƟre amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor. (e). It shall be the discreƟon of the peƟƟoner to choose between surety bonds and fixed deposits. It shall also be open for the peƟƟoner to apply to the InvesƟgator or the concerned court to subsƟtute the fixed deposit with surety bonds and vice-versa. (f).
On the reverse page of personal bond, the peƟƟoner shall menƟon 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 parƟculars, the peƟƟoner shall immediately and not later than 30 days from such modificaƟon inƟmate about the change to the concerned police staƟon and the concerned court.
(g). The peƟƟoner is to also execute a bond for aƩendance in the concerned court(s) as and when asked to do so. The presentaƟon of the personal bond shall be deemed acceptance of the declaraƟons made in the bail peƟƟon and all other sƟpulaƟons, terms, and condiƟons of secƟon 438(2) of the Code of Criminal Procedure, 1973, and also of this bail order.
12.
The peƟƟoner is directed to join the invesƟgaƟon within seven days and also as and when called by the InvesƟgator. The peƟƟoner shall be in deemed custody for SecƟon 27 of the Indian Evidence Act. The peƟƟoner shall join the invesƟgaƟon as and when called by the InvesƟgaƟng Officer or any Superior Officer; and shall cooperate with the invesƟgaƟon at all further stages as required. In the event of failure to do so, it will be open for the prosecuƟon to seek cancellaƟon of the bail. Whenever the invesƟgaƟon occurs within the police premises, the peƟƟoner 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.
13.
The peƟƟoner 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.
14.
Given the nature of the allegaƟons and the other circumstances peculiar to this case, the peƟƟoner shall surrender all weapons, firearms, ammuniƟon, if any, along with the arms license to the concerned authority within fiŌeen days from today and inform the InvesƟgator about the compliance. However, subject to the Indian Arms Act,
1959, the peƟƟoner shall be enƟtled to renew and take it back in case of acquiƩal in this case, provided otherwise permissible in the concerned rules. 15.
Within fiŌeen days from today, the peƟƟoners shall forward to the InvesƟgator/SHO and the complainant/vicƟm(s) the complete details of bank account numbers with addresses, fixed deposits, DEMAT account numbers, the current market value of jewelry, sovereign metals, all precious arƟcles, held either individually or jointly, and cash-in-hand. If the peƟƟoners fail to comply with this condiƟon, then on this ground alone the bail might be canceled, and the complainant may file any such applicaƟon for the cancellaƟon of bail, and State shall file the said applicaƟon. 16.
Within fiŌeen days from today , the peƟƟoner shall procure a smartphone and inform its IMEI number and other details to the SHO/I.O. of the Police staƟon menƟoned before. The peƟƟoner shall always keep the phone locaƟon/GPS on the "ON" mode. Whenever the InvesƟgaƟng officer asks to share the locaƟon, the peƟƟoner shall immediately do so. The peƟƟoner shall neither clear the locaƟon history, WhatsApp chats, calls nor format the phone without permission of the concerned SHO/I.O. This condiƟon shall conƟnue Ɵll the compleƟon of the trial or closure of case, whatever is earlier.
17.
During the trial's pendency, if the peƟƟoner repeats or commits any offence where the sentence prescribed is more than seven years or violates any condiƟon as sƟpulated in this order, it shall always be permissible to the respondent to apply for cancellaƟon of this bail. It shall further be open for any invesƟgaƟng agency to bring it to the noƟce of the Court seized of the subsequent applicaƟon that the accused was earlier cauƟoned not to indulge in criminal acƟviƟes. Otherwise, the bail bonds shall remain in force throughout the trial and aŌer that in SecƟon 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condiƟons. 18.
The condiƟons menƟoned above imposed by this court are to endeavour that the accused does not repeat the offence and to ensure the safety of the witnesses, vicƟm, and their families. In Mohammed Zubair v. State of NCT of Delhi, Writ PeƟƟon (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 condiƟons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proporƟonal to the purpose of imposing them. The courts while imposing bail condiƟons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condiƟons that would result in the deprivaƟon of rights and liberƟes must be eschewed." 19.
Any Advocate for the peƟƟoner and the Officer in whose presence the peƟƟoner puts signatures on personal bonds shall explain all condiƟons of this bail order in any
language that the peƟƟoner understands.
20.
If the peƟƟoner finds bond amount beyond social and financial reach, it may be brought to the noƟce of this Court for appropriate reducƟon. Further, if the peƟƟoner finds bail condiƟon(s) as violaƟng fundamental, human, or other rights, or causing difficulty due to any situaƟon, then for modificaƟon of such term(s), the peƟƟoner may file a reasoned applicaƟon before this Court, and aŌer 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 condiƟon.
21. This order does not, in any manner, limit or restrict the rights of the Police or the invesƟgaƟng agency from further invesƟgaƟon as per law. 22.
In case the InvesƟgator/Officer-In-Charge of the concerned Police StaƟon arraigns another secƟon of any penal offence in this FIR, and if the new secƟon prescribes maximum sentence which is not greater than the secƟons menƟoned above, then this bail order shall be deemed to have also been passed for the newly added secƟon(s). However, suppose the newly inserted secƟons prescribe a sentence exceeding the maximum sentence prescribed in the secƟons menƟoned above, then, in that case, the InvesƟgator/Officer-In-Charge shall give the peƟƟoner noƟce of a minimum of seven days providing an opportunity to avail the remedies available in law.
23. Any observaƟon made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments. 24.
In return for the protecƟon from incarceraƟon, the Court believes that the accused shall also reciprocate through desirable behavior. 25.
There would be no need for a cerƟfied copy of this order for furnishing bonds, and any Advocate for the PeƟƟoner can download this order along with case status from the official web page of this Court and aƩest it to be a true copy. In case the aƩesƟng officer wants to verify the authenƟcity, such an officer can also verify its authenƟcity and may download and use the downloaded copy for aƩesƟng bonds. PeƟƟon allowed in aforesaid terms. All pending applicaƟons, if any, stand disposed. (ANOOP CHITKARA) JUDGE 17.04.2023 JyoƟ-II Whether speaking/reasoned:
Yes Whether reportable:
No.