Mandeep @ Vishu @ Mandeep Kumar vs State Of Punjab

Anoop Chitkara, J

FIR No

Dated

Police Station

Sections

72

15.05.2021

Nangal, District Rupnaga

Earlier registered under Secons 302, 148, 149, 506 IPC now a6er detailed inquiry conducted by the S.P. dated 26.07.2021 and accepted by the Senior Superintendent of Police, offence has been converted and registered under Secons 304, 323, 506, 34 IPC, wherein the peoner has been summoned under Secon 319 Cr.P.C.

On being summoned by the trial court aer allowin g the complainant's applicaon under secon 319 CrPC, the petitioner has come up before this court under secon 438 CrPC, with further relief that on their appearance before the trial court, they be released on bail.

Petitioner’s counsel argued that the pre-trial inca rceraon would cause an irreversible injusce to the petitioner and family.

State’s counsel opposes the bail. The contenon o n behalf of the complainant is that inially, because of an unfair invesgaon by the police, the petitioners were absolved, whereas their involvement in the crime stands substanated by their summoning by the trial court.

REASONING:

The prosecuon agencies did not consider it appropriate to arraign the petitioner as an accused. Thus, a view favouring the petitioner exists, and on this ground alone, the petitioner is entled to bail. Even a primafacie perusal of paragraph 4 of the bail petitione needs consideraon for bail.

In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, (Para 30), a Constuonal Bench of Supreme Court held that the b ail decision must enter the cumulave effect of the variety of circumstances jus fying 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 entled to bail if the Court concerned concludes that the prosecuon 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 sasf acon for the need to release such person on bail, in the given fact situaons. The re jecon of bail does not preclude filing a subsequent applicaon. The courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situaon. In State of Rajasthan v Balchand, AIR 1977 SC 2447, (Para 2 & 3), Supreme Court no ceably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances suggesve of fleeing from jusce or th warng the course of jusce or creang other troubles in the shape of repeang offe nces or inmidang witnesses and the like by the petitioner who seeks enlargement on b ail from the Court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of jusce and must weigh when considering the ques on of jail. So also, the heinousness of the crime. In Gudikan 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 negave criteria necessita ng that course. In Prahlad Singh Bha 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 consideraons. In Dataram Singh v State of Uar Pradesh , (2018) 3 SCC 22, (Para 6), Supreme Court held that the grant or refusal of bail is enrely within the discreon of the judge hearing the maer and though that discreon is unfeered, it mu st be exercised judiciously, compassionately, and in a humane manner. Also, condions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

The possibility of the accused tampering with evidence, inmidang witnesses, and the likelihood of fleeing jusce, can be taken c are of by imposing elaborave and stringent condions. In Sushila Aggarwal , (2020) 5 SCC 1, Para 92, the Constuonal Bench held that unusually, subject to the evidence produced, the Courts can impose restricve condions. 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 Secon 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 invesgaon of the police.

Without commenng on the case's merits, in the fact s and circumstances peculiar to this case, and for the reasons menoned above, t he petitioner makes a case for bail, subject to the following terms and condions, which shall be over and above and irrespecve of the contents of the form of bail bon ds in chapter XXXIII of CrPC, 1973.

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 pragmac approach is that while granng ba il with surees, the “Court” and the “Arresng Officer” shoul d 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 creang a lien over his bank account. The accused should also have a further opon to switch between the modes. The opon lies with the accused to choose between the s urees and deposits and not with the Court or the arresng offic er.

Given above, provided the petitioner is not require d in any other case, on appearance in the trial on the date fixed or any date before the next date, the petitioner shall be released on bail in the FIR capo ned above, in the following terms:

(a). Petitioner 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 sasfacon of the concerned invesgator/SHO. Before accepng the surety, the concerned officer must sasfy that if the accused fail to appear in c ourt, then such surety can produce such accused before the court.

OR

(b) Petitioner to hand over to the concerned invesga tor/SHO a fixed deposit for Rs. Ten Thousand only (INR 10,000/-), with the clause of automac renewal of the principal and the interest reverng to the linked account, ma de 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 petitioner’s account.

(c). In case of the launching of the prosecuon, th e 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 unl the case's closure, or discharged by substuon, or up to the expiry of the period me noned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the enre amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.

(e). It shall be the discreon of the petitioner to c fixed deposits. It shall also be open for the petitione concerned court to substute the fixed deposit with hoose between surety bonds and er to apply to the Invesgator or the surety bonds and vice-versa.

(f). On the reverse page of personal bond, the pe oner shall menon 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 parculars, the petitioner shall immediately and not later than 30 days from such modificaon inmate about the change to the concerne d police staon and the concerned court.

(g). The petitioner is to also execute a bond for ae ndance in the concerned court(s) as and when asked to do so. The presentaon of the per sonal bond shall be deemed acceptance of the declaraons made in the bail pe on and all other spulaons, terms, and condions of secon 438(2) of the Code o f Criminal Procedure, 1973, and also of this bail order.

The petitioner shall not influence, browbeat, press urize, 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.

Any observaon 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 protecon from incarceraon, the Court believes that the accused shall also reciprocate through desirable behavior.

The SHO of the concerned police staon or the in vesgang officer shall arrange to send a copy of this order, preferably a so copy, to the complainant and the vicm, without any delay. If the vicm(s) noce any violaon of this order, they may inform the SHO of the concerned police staon, the trial court, or even this court.

There would be no need for a cerfied copy of this o rder for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the official web page of this Court and aest it to be a true copy. In case the aesng officer wants to verify the authencity, such an officer can also verify its authencity and may download and use the downloaded copy for aesng bonds.

Petitione allowed in aforesaid terms . All pending applicaons, if any, stand disposed.