Gurdeep Singh And ANR v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Reserved on: 08.02.2022

Pronounced on: Feb, 22, 2022 Gurdeep Singh and another

...Petitioners

Versus

State of Punjab

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Karanjeet Singh, Advocate for the petitioners. Mr. Harsimar Singh Sitta, AAG, Punjab.

Mr. Himanshu Puri, Advocate for the complainant **** ANOOP CHITKARA, J.

FIR No.

Dated Police Station Sections 01.05.2021 Lopoke Amritsar Rural 302/148/149 IPC (section 506 IPC added later on and Section 25/27 of the Arms act, 1959 1.

The petitioners, incarcerating upon their arrest in the FIR captioned above, came up before this Court under Section 439 of Code of Criminal Procedure, 1973 (CrPC) seeking bail.

2.

In paragraph 10 of the petition, it is declared that the accused persons have no criminal history.

3.

Ld. Counsel for the petitioners contends that the pre-trial incarceration would cause an irreversible injustice to the petitioner and family. 4.

Ld. counsel appearing for the State contends that the offence is heinous, and one innocent person was killed. The contention on behalf of the complainant is that all the accused armed with deadly objects attacked the complainant, and all shared a common object to kill them.

REASONING:

5.

The brief facts relevant to decide the present petition are the police recorded the statement of the complainant-Manjit Singh under Section 154 Cr.P.C. in which he stated

that Manjit Singh and his brother Hardeep Singh have dispute with one Nirvail Singh son of Satnam Singh. The reason for this dispute is that Nirvail Singh uses to pass his tractor-trolley through the land of the complainant forcefully. On various occasions, he was asked not to do that but he kept on doing so. On 01.05.2021 in the morning complainant alongwith his family members were present in his house then Nirvail Singh armed with 12-bore rifle double-barrel, Paramjit Singh @ Pamma armed with datar, Parvez Singh armed with sword, Robanpreet, Jobapreet Singh, Gurdeep Singh, Sarabjit Singh Singh (the present petitioners) armed with dandas and Sajjan Singh empty handed alongwith two unidentified persons came outside their house. They raised lalkara and used abusive language.

The brother of the complainant-Hardeep Singh opened the gate of their house. Paramjit Singh @ Pamma raised lalkara that they would teach him a lesson for stopping tractor of Nirvail Singh. Nirvail Singh fired shot of 12bore rifle, which directly hit on the chest, arms and abdomen of the brother of the complainant. On seeing this, the complainant went inside his house and brought 12bore rifle and fired one shot in the air in self-defence. On raising hue and cry, accused persons fled away from the spot. People started gathered there. The brother of the complainant was taken to the hospital where doctor has declared him dead. The investigation commenced, which led to arrest of the accused including the present petitioners.

6.

The State has filed its response, and it has been explicitly stated in paragraph 10 that the Superintendent of Police had verified the investigation, and he found accused Parvej Singh and Robanpreet Singh to be innocent and both were not found to be involved in the alleged offence. However, in India, the legal maxim falsus in uno falsus in omnibus is not strictly applicable. Given this, an analysis of the complainant's credibility can only be assessed after the completion of the recording of his statement during the trial. As per the status report, accused Nirvail Singh had fired a gunshot on Hardeep Singh. As per post mortem report, the cause of death of Hardeep Singh was gunshot wounds. Although two other injuries are mentioned in post mortem examination, those are minor and certainly not fatal.

There is no evidence about the overt acts of the petitioners. There is nothing to primafacie say that the petitioner' acted in connivance with Nirvail Singh, who had fired the gunshot. Although if the petitioners did not share the common intention, they should have distanced themselves from Nirvail Singh and those who shared the intention to kill, or he should have prevailed upon Nirvail not to carry a gun; however, all this would be subject to the outcome of the trial. Any further discussions might prejudice the case of parties. The fact that neither any injury was attributed to the petitioners nor are the allegations that on his provocation or instigation, Nirvail Singh fired a gunshot, in the facts and circumstances peculiar to this case, the petitioners make out a particular case for grant of bail.

7.

In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Constitutional Bench of Supreme Court held that the bail decision must enter the cumulative effect of the variety of circumstances justifying 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 entitled to bail if the Court concerned concludes that the prosecution 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 satisfaction for the need to release such person on bail, in the given fact situations. The rejection of bail does not preclude filing a subsequent application.

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

In GudikantiNarasimhulu 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 negative criteria necessitating that course. In Prahlad Singh Bhati 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 considerations. In Dataram Singh v State of Uttar Pradesh, (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously, compassionately, and in a humane manner.

Also, conditions 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 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. 9.

Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioners makes a case for bail, subject to the following 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 Mahidul Sheikh v. State of Haryana, CRM-33030-2021 in CRA-S-363-2020, decided on 14-01-2022, Para 53, this Court observed, [53]. The pragmatic approach is that while granting bail with sureties, the "Court" and the "Arresting 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 creating a lien over his bank account. The accused should also have a further option to switch between the modes. The option lies with the accused to choose between the sureties and deposits and not with the Court or the arresting officer. 11.

Given above, provided the accused is not required in any other case, the petitioners shall be released on bail in the FIR mentioned above, subject to furnishing a personal bond of Rs. Ten thousand each (INR 10,000/-) and shall furnish one surety of Rs. Twenty-five thousand (INR 25,000/-), to the satisfaction of the concerned Court/ Judicial Magistrate having the jurisdiction over the Police Station conducting the investigation, and in case of non-availability, any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the sureties, the concerned Court must satisfy that if the accused fails to appear in Court, then such surety is capable of producing the petitioners before the Court.

12.

In the alternative, the petitioners may furnish a personal bond of Rs. Ten Thousand only (INR 10,000/-), and hand over to the concerned court a fixed deposit(s) for Rs. Ten Thousand only (INR 10,000/-), made in favour of 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 banks, with the clause of automatic renewal of the principal and the interest reverting to the linked account.

13.

The fixed deposit need not necessarily be made from the applicant's account. 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. If made online, its printout, countersigned by the accused, shall be given; and the depositor shall get the online liquidation disabled. The applicant shall inform the concerned branch of the bank at the earliest 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 and FIR number. After that, the applicant shall hand over such proof and endorsement to the concerned police station. Such court shall have a lien over the deposit until the case's closure, or discharged by substitution, or up to the expiry of the period mentioned under S. 437-A CrPC, 1973, as the case may be. Subject to the proceedings under S. 446 CrPC, the entire amount of fixed deposit, less taxes, if

any, shall be endorsed/returned to the depositor. 14.

It shall be the total discretion of the applicant to choose between surety bonds and fixed deposits. It shall also be open for the applicant to apply to the investigator or the concerned court to substitute fixed deposit with surety bonds and vice-versa. 15.

On the reverse page of personal bonds, the attesting officer shall mention the permanent address of the petitioners along with the phone number linked with the AADHAR card, the other phone numbers (if any), and e-mail (if any). In case of any change in the above particulars, the petitioners shall immediately and not later than 30 days from such modification, intimate about the change to the concerned Police Station and the concerned Court.

16. The petitioners to also execute a bond for attendance in the concerned Court(s), as and when asked to do so. The presentation of the personal bond shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order.

17.

The petitioners shall be in deemed custody for Section 27 of the Indian Evidence Act.Although the investigation is complete, but in case of any further investigation, the petitioners 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 might 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 petitioners shall not be called before 8 AM and shall be let off before 6 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

18.

The petitioners 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.

19.

Given the nature of allegations and the other circumstances peculiar to this case, the petitioners shall surrender all weapons, firearms, ammunition, if any, along with the arms license to the concerned authority within ten days of release from prison and inform the Investigator about the compliance. However, subject to the Indian Arms Act, 1959, the petitioners shall be entitled to renew and take it back in case of acquittal in this case.

20.

Till the completion of the trial, the petitioners shall not contact, call, text, message, remark, stare, stalk, make any gestures or express any unusual or inappropriate, verbal or otherwise objectionable behavior towards the victim and victim's family, either physically, or through phone call or any other social media, through any other mode, nor shall unnecessarily roam around the victim's home. 21.

Given the nature of allegations and the other circumstances peculiar to this case, the petitioners shall not enter within a radius of one kilometer from the victim's home till the recording of the statements of victim's family and all spot and recovery witnesses, except official witnesses. This Court is imposing this condition to rule out any attempt by the accused to incapacitate, influence, or cause any discomfort to the victim. Reference be made to Vikram Singh v Central Bureau of Investigation, 2018 All SCR (Crl.) 458); and Aparna Bhatt v. State of Madhya Pradesh, 2021 SCC Online SC 230. 22.

During the trial's pendency, if the petitioners repeat 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 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.

23.

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

24. If the petitioners find bond amount beyond social and financial reach, it may be brought to the notice of this Court for appropriate reduction. Further, if the s finds 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 petitioners 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.

25. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation as per law.

26. 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.

27. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior. 28.

If the victim(s) notice any violation of this order, they may inform the SHO of the concerned police station, the trial court, or even this court. 29.

There would be no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioners can download this order along with case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds. Petition allowed in aforesaid terms. All pending applications, if any, stand disposed. (ANOOP CHITKARA) JUDGE February 22, 2022 Sonia arora Whether speaking/reasoned:

Yes Whether reportable:

No.