Neelam v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH CRM-M-26867-2023 Date of Decision: 31.05.2023 Neelam ...PeƟƟoner

Versus

State of Punjab

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Munish Puri, Advocate and Ms. DeepƟ Rampal, Advocate for the peƟƟoner.

Mr. Virat Rana, AAG, Punjab.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police StaƟon SecƟons 08.10.2021 Sadar, District 324, 323, 148, 149 IPC Pathankot (326 IPC added later on) 1.

The peƟƟoner, incarceraƟng upon his arrest in the FIR capƟoned above, came up before this Court under SecƟon 439 of Code of Criminal Procedure, 1973 (CrPC) seeking bail.

2.

In paragraph 9 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.The peƟƟoner contends that the pre-trial incarceraƟon would cause an irreversible injusƟce to the peƟƟoner and family.

4.

The State opposes bail.

REASONING:

5.

The allegaƟons against the peƟƟoner are that he along with other co accused armed with datar entered into the fields where the complainant and his father were working and gave them beaƟngs .

6.

As per bail peƟƟon, the peƟƟoner is in custody since 24.04.2023. Given the nature of allegaƟons, and injuries inflicted by the peƟƟoner, viz-a-viz pre-trial custody, coupled with the other factors peculiar to this case, there would be no jusƟfiability for

further pre-trial incarceraƟon at this stage, subject to the compliance of terms and condiƟons menƟoned in this order. Furthermore, the peƟƟoner is a first offender, and one of the relevant factors would be to provide an opportunity to course-correct. 7.

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 GudikanƟNarasimhulu 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.

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.

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, 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 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 court, and in case of non-availability, any nearest Ilaqa Magistrate/duty Magistrate. Before accepƟng the surety, the concerned court must saƟsfy that if the accused fails to appear in court, then such surety can produce the accused before the court.

OR (b) PeƟƟoner to hand over to the concerned court 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 favor of the 'Chief Judicial Magistrate' of the concerned district. Said 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). 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. (d). It shall be the total discreƟon of the peƟƟoner to choose between surety bond and fixed deposit. 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. (e). On the reverse page of personal bond, the peƟƟoner shall menƟon her/his permanent address along with the phone number, preferably that number 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.

(f). 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 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.

13.

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 release from prison 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. 14.

Till the compleƟon of the trial, the peƟƟoner 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. 15.

Given the nature of the allegaƟons and the other circumstances peculiar to this case, the peƟƟoner shall not enter the property, workplace, and the residence of the vicƟm and shall also not enter within a radius of five-hundred meters 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. 16.

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.

17.

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." 18.

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.

19.

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.

20. 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. 21.

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.

22. 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. 23.

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

The SHO of the concerned police staƟon or the invesƟgaƟng officer shall arrange to send a copy of this order, preferably a soŌ copy, to the complainant and the vicƟm,

without any delay. If the vicƟm(s) noƟce any violaƟon of this order, they may inform the SHO of the concerned police staƟon, the trial court, or even this court. 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 31.05.2023 JyoƟ-II Whether speaking/reasoned:

Yes Whether reportable:

No.