Gurmail Singh vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest for committing murder, has come up before this Court seeking regular bail.

Earlier, the petitioner had filed the following bail petitions:

(a) Cr.MP(M) No.213 of 2021, filed by the petitioner before this Court, was withdrawn by him on 29.01.2021 and he was given liberty to file afresh as

and when he deems it fit.

In Para -10 of the bail application, the petitioner declares having no criminal history.

Briefly, the allegations against the petitioner are as follows:

a) On 10th March, 2020, the Police station Baddi received a telephonic information from the Community Health Centre Nalagarh that some persons,

who have received injuries in some assaults, have come for treatment in this Hospital. A daily diary entry number 31 to this effect was recorded in the

police station. The doctor examined the injured Ashish Kumar and recorded a medico-legal certificate.

b) The Police started the investigation and, on 11th March, 2020 at 3:50 p.m., recorded the statement of Aman Gupta under section 154 CrPC. He

informed the Police that he worked as a supervisor nearby. On 10th March, 2020, i.e., yesterday, he was at his home due to the festival of Holi. He

and his room partners, namely Ashish, Roshan, Shesh Mani, and some other boys, were celebrating Holi. At around 1:30 p.m., few boys, names of

two of whom were Neeraj and Kapil, along with 6-7 more boys, reached there. All these boys were also tenants nearby. At that time, the informant

Aman Gupta and his friends were celebrating Holi on the roof of their house. These outsider boys reached on the roof and started hurling abuses at

them without any rhyme and reasons. When they tried to stop them from hurling abuses, then they started beating them and gave kicks and fists blows

to them. In the meanwhile, Kapil picked up an iron rod, which was lying on the roof. Kapil inflicted a blow on the head of Ashish with this Iron rod. All

other persons were giving beatings with fists and kicks. On these allegations, the informant sought criminal prosecution and action against the

assailants.

c) On 11th March, 2020, the Investigator recorded the statement of Javed Khan under 161 CrPC. The narration of the statement of Javed Khan

recorded under section 161 CRPC is that on 10th March 2020, along with his friends, namely Ashish, Aman Gupta, and some other friends, were

present on the roof of the house where they were celebrating Holi by dancing and singing. At around 1.30 p.m., 6-7 boys and Neeraj and Kapil came

there and asked them to stop dance and singing. After that, they started beating them with fists and kicks. In the meanwhile, Kapil (A-1) picked up a

rod, which was lying on the slab, and hit it on the scalp of Ashish. All of them gave beatings with fists, kicks to them. The Investigator also recorded

the statements under section 161 CrPC of Sheshmani Prajapati, Roshan Lal. All these versions were identical to that of Javed Khan.

d) The Investigator arrested Kapil. During interrogation, Kapil made a disclosure statement under section 27 of the Indian Evidence Act to point out

where he had kept the iron rod. Subsequently, Kapil led the Police party and the witnesses and got recovered an iron rod.

e) On 15th March 2020, injured Ashish was taken to a hospital in Mohali Punjab. On 20th March, 2020 he was shifted to a hospital at Zirakpur, and he

went to another hospital at Zirakpur. On 3rd April, 2020, he was referred to the Post Graduate Institute of Medical Education and Research,

PGIMER, Chandigarh, where on 3 April 2020, he succumbed to the injury.

f) In PGI , post mortem examination of the body of the deceased was conducted. The doctors noticed one injury on the scalp. According to the

doctors, the cause of death was post-traumatic hydrocephalus as a complication of traumatic brain injury, which was sufficient to cause death in an

ordinary course of nature.

g) Due to the COVID-19 pandemic, a lockdown was imposed. The Police officials were deployed for enforcement of curfew and thus could not carry

out the investigation. This was bonafide, and none of the Police officials can be blamed for the delay, which was beyond their control. After the partial

lifting of the lockdown, the Investigator resumed the investigation, and on 10th August 2020, arrested the other accused persons A-2 to A-7.

h) Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

On the contrary, the contention on behalf of the State is that if this Court is inclined to grant bail, then such a bond must be subject to very stringent

conditions.

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.

REASONING:

In the statement of Amit Kumar recorded under section 154 CrPC, on 11th March 2020, which led to the registration of FIR, only Kapil (A-1) and

Neeraj (A-2) were named, and none of the other accused A-3 to A-7 were named. On the same day, in the statements of Javed Khan, Shesh Mani

Prajapati, and Roshan Lal, none of them named any other accused except Kapil (A-1) and Neeraj (A-2). On

10 th August, 2020, Amit and Javed visited the Police station and informed the Investigator that they have come to know about the names of the boys

who had accompanied Kapil(A-1) and Neeraj (A-2). After that, the Investigator recorded their supplementary statements under section 161 CrPC

and arrested the accused Pradeep (A-3), Pawan Kumar (A-4), Mithun alias Mithu (A-5), Kashmir (A-6), and Gurmail Singh alias Raju (A-7). In the

statements recorded under section 154 CrPC and 161 CrPC, the witnesses did not name the accused A-3 to A-7. After the partial lifting of the

lockdown, they were arrested on 10th August, 2020. However, the accused were not subjected to the Test Identification parade for the reasons best

known to the Investigator, SHO, and the Supervisory Officer.

Furthermore, in the statement of Amit recorded under section 154 CrPC, he had explicitly stated that the boys who had accompanied Kapil (A-1)

and Neeraj (A-2) were also residing nearby as tenants. Thus, the best evidence to substantiate this was the investigation from the neighbourhood and

to verify the houses where A-3 to A-7 were residing as tenants and after that verification from the Landlords and other neighbours, etc. A perusal of

the Police reports filed under section 173(2) CrPC does not mention any such investigation or corroborating documents. Why it was not done would be

known only to the Investigator, SHO, and the Supervisory Officers. Thus, an analysis of the role of the accused and the evidence collected so far

would make out a special case for grant of bail.

An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose. Without

commenting on the merits of the case, the stage of the investigation and the period of incarceration already undergone would make out a case for bail.

In the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail.

Given the above reasoning, the Court is granting bail to the petitioner, subject to strict 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.

In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that

any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to

switch over to another.

The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Ten thousand (INR 10,000/-),

and shall furnish two sureties of Rs. Twenty-five thousand only each (INR 20,000/-), to the satisfaction of the Judicial Magistrate having the

jurisdiction over the Police Station conducting the investigation, and in case of non-availability, any Ilaqa Magistrate. Before accepting the sureties, the

concerned Magistrate must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the

Court, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.

In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Ten thousand (INR 10,000/-), made in favour of

Chief Judicial Magistrate, District Solan, H.P,

a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g.,

HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the

linked account.

b) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

c) 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.

d) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get

the online liquidation disabled.

e) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, 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 as well as FIR

number.

f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for

substitution of fixed deposit with surety bonds and vice-versa.

h) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be

endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC,

1973, or until discharged by substitution as the case may be.

The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:

a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay

the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on

this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s),

WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall

immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers,

WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

c) The petitioner 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 of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to

tamper with the evidence.

d) The petitioner 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 may 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 petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall

not be subjected to third-degree, indecent language, inhuman treatment, etc.

e) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of

summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any).

[Hon’ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July

10, 2020]:

i. At the first instance, the Court shall issue the summons.

ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.

iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the

petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to

achieve the purpose.

Given the gravity of accusations and heinous nature of offence, the petitioner shall surrender all firearms, ammunition, if any, along with the arms

license to the concerned authority within 30 days from today. However, subject to the provisions of the Indian Arms Act, 1959, the petitioner shall be

entitled to renew and take it back in case of acquittal in this case.

The petitioner shall neither stare, stalk, make any gestures, remarks, call, contact, message the witnesses, either physically, or through phone call

or any other social media, nor roam around the witnesses’ homes.

During the trial's pendency, if the petitioner repeats 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.

Any advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of

this bail order, in vernacular and if not feasible, in Hindi.

In case the petitioner finds the 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 petitioner 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.

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

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.

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

The SHO of the concerned Police Station or the Investigating Officer shall arrange to send a copy of this order, preferably a soft copy, to the

victim, at the earliest. In case the victim notices any objectionable behavior or violation of any terms or conditions of this order, the victim may inform

the SHO of the concerned Police Station or the Trial Court or even to this Court.

There would be no need for a certified copy of this order for furnishing bonds. Any Advocate for the petitioner can download this order along with

the case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the

authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

The petition stands allowed in the terms mentioned above.

Copy Dasti.