Kulwinder Singh And Another v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH Date of Decision: 11.05.2023 Kulwinder Singh and another ...PeƟƟoners

Versus

State of Punjab

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. L.S. Sidhu, Advocate for the peƟƟoners.

Mr. Harsimar Singh SiƩa, DAG, Punjab.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police StaƟon SecƟons 13.08.2020 Jaurkian, District Mansa 302, 341, 323, 34 IPC (324 IPC added later on) 1.

On being summoned by the trial court aŌer allowing the complainant's applicaƟon vide order dated 09-03-2023, under secƟon 319 CrPC, the peƟƟoners have come up before this court under secƟon 438 CrPC, with further relief that on their appearance before the trial court, they be released on bail. 2.

PeƟƟoner's counsel prays for bail by imposing any stringent condiƟons. PeƟƟoner's counsel argued that the pre-trial incarceraƟon would cause an irreversible injusƟce to the peƟƟoners and family.

3.

State's counsel opposes the bail. The contenƟon on behalf of the complainant is that iniƟally, because of an unfair invesƟgaƟon by the police, the peƟƟoners were absolved, whereas their involvement in the crime stands substanƟated by their summoning by the trial court.

REASONING:

4.

The State had absolved the peƟƟoners during invesƟgaƟon and the prosecuƟon agencies did not consider it appropriate to arraign the peƟƟoners as an accused. Thus, a view favouring the peƟƟoners exist, and on this ground alone, the peƟƟoners are enƟtled to bail. Even a primafacie perusal of paragraph 6 of the bail peƟƟon needs consideraƟon for bail.

5.

In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a ConsƟtuƟonal Bench of Supreme Court held that the bail decision must enter the

cumulaƟve effect of the variety of circumstances jusƟfying 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 enƟtled to bail if the Court concerned concludes that the prosecuƟon 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 saƟsfacƟon for the need to release such person on bail, in the given fact situaƟons. The rejecƟon of bail does not preclude filing a subsequent applicaƟon. The courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situaƟon.

In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court noƟceably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances suggesƟve of fleeing from jusƟce or thwarƟng the course of jusƟce or creaƟng other troubles in the shape of repeaƟng offences or inƟmidaƟng witnesses and the like by the peƟƟoner who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the peƟƟoner to avoid the course of jusƟce and must weigh when considering the quesƟon of jail. So also, the heinousness of the crime. In GudikanƟ 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 negaƟve criteria necessitaƟng that course.

In Prahlad Singh BhaƟ 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 consideraƟons. In Dataram Singh v State of UƩar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is enƟrely within the discreƟon of the judge hearing the maƩer and though that discreƟon is unfeƩered, it must be exercised judiciously, compassionately, and in a humane manner. Also, condiƟons for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

6.

The possibility of the accused 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. 7.

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. 8.

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. 9.

Given above, provided the peƟƟoners are not required in any other case, on appearance in the trial on the date fixed or any date before the next date, 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 trial Court. 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.

10.

Given the nature of the allegaƟons and the other circumstances peculiar to this case, the peƟƟoners 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. 11.

Till the compleƟon of the trial, the peƟƟoners shall not contact, call, text, message, remark, stare, stalk, make any gestures or express any unusual or inappropriate, verbal or otherwise objecƟonable behavior towards the vicƟm and vicƟm's family, either physically, or through phone call or any other social media, through any other mode, nor shall unnecessarily roam around the vicƟm's home. 12.

Given the nature of the allegaƟons and the other circumstances peculiar to this case, the peƟƟoners shall not enter the property, workplace, and the residence of the vicƟm and shall also not enter within a radius of one kilometer from the vicƟm's home Ɵll the recording of the statements of all non-official and informal witnesses in the trial. This Court is imposing this condiƟon to rule out any aƩempt by the accused to incapacitate, influence, or cause any discomfort to the vicƟm. Reference be made to Vikram Singh v Central Bureau of InvesƟgaƟon, 2018 All SCR (Crl.) 458); and Aparna BhaƩ v. State of Madhya Pradesh, 2021 SCC Online SC 230. 13.

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. 14.

In return for the protecƟon from incarceraƟon, the Court believes that the accused shall also reciprocate through desirable behavior. 15.

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 11.05.2023/JyoƟ-II Whether speaking/reasoned:

Yes Whether reportable:

No.