Sanjay Charaya v. State Of Haryana

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH Date of Decision: 11.09.2023 Sanjay Charaya ...PeƟƟoner

Versus

State of Haryana

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Vinod Ghai, Senior Advocate with Mr. Chirag Yogendra Mehta, Advocate for the peƟƟoner. Mr. Gurmeet Singh, A.A.G., Haryana.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police StaƟon SecƟons 18.10.2005 State Vigilance 420, 467, 471, 120-B IPC and Bureau, Hisar (Now 13 of the PrevenƟon of AnƟ CorrupƟon CorrupƟon Act, 1988 Bureau, Hisar) 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 12 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 custodial interrogaƟon and pre-trial incarceraƟon would cause an irreversible injusƟce to the peƟƟoner and family. 4.

The state's counsel opposes the bail and states that considering the allegaƟons, the peƟƟoner's custodial interrogaƟon is necessary. REASONING:

5.

The prosecuƟon's case is that the complainant and others pointed out irregulariƟes and malpracƟces commiƩed by the members of Haryana Public Service

Commission in the selecƟon process of Haryana Civil Services (ExecuƟve) 2004. The allegaƟons are that the selecƟon process of said examinaƟon was not fair or based on merit, rather the selecƟon was influenced by poliƟcal and extraneous consideraƟons. During the invesƟgaƟon some sketchy things were found in the answer sheets of the candidates such as over wriƟng, change in handwriƟng and change in marks which effect the selecƟon zone.

6.

Given the penal provisions imposed and the sentence provided by the Legislature, the nature of allegaƟons coupled with the fact that 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 require, 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:INSC:107 [Para 7], (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.

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 v. State (NCT of Delhi) 2020:INSC:106 [Para 92], (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 Madhu Tanwar v. State of Punjab, 2023:PHHC:077618 [Para 10, 21], CRM-M27097-2023, decided on 29-05-2023, this court observed, [10] The exponenƟal growth in technology and arƟficial intelligence has transformed idenƟficaƟon techniques remarkably. Voice, gait, and facial recogniƟon are incredibly sophisƟcated and pervasive. ImpersonaƟon, as we know it tradiƟonally, has virtually become impossible. Thus, the remedy lies that whenever a judge or an officer believes that the accused might be a flight risk or has a history of fleeing from jusƟce, then in such cases, appropriate condiƟons can be inserted that all the expenditure that shall be incurred to trace them, shall be recovered from such person, and the State shall have a lien over their assets to make good the loss.

[21] In this era when the knowledge revoluƟon has just begun, to keep pace with exponenƟal and unimaginable changes the technology has brought to human lives, it is only fiƫng that the dependence of the accused on surety is minimized by giving alternaƟve opƟons. Furthermore, there should be no insistence to provide permanent addresses when people either do not have permanent abodes or intend to re-locate. 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, and in case of non-availability, to any nearest Ilaqa Magistrate/duty Magistrate. Before accepƟng the surety, the concerned officer 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 invesƟgator 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, or blocking the aforesaid amount in favour of the concerned 'Chief Judicial Magistrate'. Said fixed deposit or blocking funds can be from any of the banks where the stake of the State is more than 50% or from any of the well-established and stable private sector banks. In case the bankers are not willing to make a Fixed Deposit in such eventuality it shall be permissible for the peƟƟoner to prepare an account payee demand draŌ favouring concerned Chief Judicial Magistrate for a similar amount.

(c). Such court shall have a lien over the funds 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). 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 of this bail order.

(e). While furnishing personal bond, the peƟƟoner shall menƟon the following personal idenƟficaƟon details:

1.

AADHAR number 2.

Passport number, (If available), when the court aƩesƟng the bonds thinks appropriate or considers

the accused as a flight risk.

3.

Mobile number (If available) 4.

E-Mail id (If available) 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.

PeƟƟoner to comply with their undertaking made in the bail peƟƟon, made before this court through counsel as reflected at the beginning of this order or in earlier orders. If the peƟƟoner fails to comply with any of such undertakings, then on this ground alone, the bail might be canceled, and the vicƟm/complainant may file any such applicaƟon for the cancellaƟon of bail, and the State shall file the said applicaƟon. 15.

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.

16.

The condiƟons menƟoned above imposed by this Court are to endeavour that the accused does not repeat the offence and to provide an opportunity to the vicƟm to

consider legal remedies for recovery of the amount. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], 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." 17.

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.

18.

If the peƟƟoner finds the 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.

19. 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. 20.

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.

21. 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. 22.

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

23.

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 11.09.2023 JyoƟ-II Whether speaking/reasoned:

Yes Whether reportable:

No.