Mohinder Bansal vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest for defrauding people by convincing them to open accounts and then siphoning the deposit money, has

come up before this Court seeking regular bail on the grounds that he is incarcerating from 26th July 2018, i.e., for more than around 2 years and 5

months.

Based on a complaint, the police arrested the petitioner in FIR No.51 of 2016, dated 27.2.2016, registered under Section 420, 406 & 120-B of Indian

Penal Code, 1860, (IPC), in Police Station Sadar Hamirpur District Hamirpur, Himachal Pradesh, disclosing cognizable and non-bailable offences.

Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Judge. However, vide order dated 21.5.2019, Ld.

Sessions Judge, Hamirpur, HP, dismissed the petition primarily on the grounds that the amount involved was huge and it was result of prior preparation

and due deliberation.

Subsequently the petitioner filed a petition before this Court, which was listed as Cr.MP(M) No.1232 of 2019. A co-ordinate bench of this Court

vide order dated 21.10.2019 dismissed the bail on the grounds that the petitioner remained absconded for a period of two years and after a great

difficulty, he was arrested. The Hon’ble Judge further observed that there was a possibility in case the petitioner is enlarged on bail, he may leave

India.

Now the petitioner has again filed the present petition primarily on the grounds of parity and long incarceration.

Briefly, the allegations against the petitioner are that the offences, for which the petitioner is incarcerating, are under Sections 420 and 406 of IPC.

The maximum sentence prescribed for commission of offence punishable under Section 420, IPC is 7 years and for 406, IPC is 3 years.

During the course of arguments, Mr. Nareshwar Singh Chandel, Ld. Senior Counsel argued that the maximum sentence imposable is seven years

and the petitioner also deserves similar treatment as has been given to the under-trial prisoners due to COVID-19 pandemic.

While opposing the bail, the alternative contention on behalf of the State is that if this Court grants bail, such order must be subject to conditions,

especially of not repeating the criminal activities.

In the present case, the maximum sentence imposable for the offences mentioned in FIR attracts the application of the directions passed in Arnesh

Kumar v. State of Bihar, (2014) 8 SCC 273, (Para 13), wherein Hon’ble Supreme Court directed all the State Governments to instruct its police

officers not to arrest automatically when where the offence is punishable with imprisonment for a term which may be less than seven years or which

may extend to seven years; whether with or without fine.

An analysis of the evidence does not justify further incarceration of the accused, nor is it going to achieve any significant purpose, making out a

case for bail. The possibility of the accused influencing the course of the investigation, tampering with evidence, intimidating witnesses, and the

likelihood of fleeing justice, can be taken care of by imposing elaborative conditions and stringent conditions. The possibility of the accused influencing

the course of the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing

elaborative conditions and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1 ,Para 92, the Constitutional bench of Supreme Court held that

unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

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.

Following the decision of this Court in Manish Lal Shrivastava v. State of Himachal Pradesh, Cr.MP(M) No. 1734 of 2020, decided on 1st Dec

2020, the petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Ten Lacs (INR 10,00,000/-),

and shall either furnish two sureties of a similar amount, both of whom, in case of default from putting in an appearance, can produce the accused

before the Court to the satisfaction of the Judicial Magistrate, Baijnath/ Chief Judicial Magistrate, District Kangra, HP/ or any other Judicial

magistrate of District Kangra, HP or the aforesaid personal bond and fixed deposit(s) for Rs. One Lac only (INR 100,000/-), made in favour of

“Chief Judicial Magistrate, District Hamirpur, H.P.â€, 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. Such a fixed deposit need not necessarily be made from the account of the petitioner. If such a fixed deposit is made

on paper, then the original receipt shall be handed over to the arresting officer. 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. The petitioner or his Advocate shall

inform at the earliest, either by e-mail or by post/courier, the concerned branch of the bank about the fixed deposit, whether made on paper or in any

other mode, along with its number as well as FIR number, that it has been tendered as surety. After that he shall hand over such proof along with

endorsement to the Investigator. 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. 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 Officer shall have a lien over the

deposits until discharged by substitution, and in case any Court takes cognizance then such Court, upon which the investigator shall hand over the

deposit to such Court, which shall have a lien over it up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or as the case may be.

a) The Petitioner shall surrender his passport to the concerned SHO/I.O, if issued, and if not already deposited. In case of deposit, the said passport

shall not be released without the permission of the Trial Court or this Court.

b) The petitioner to give security to the concerned Court(s) for attendance. Once the trial begins, the petitioner shall not, in any manner, try to delay

the trial. The petitioner undertakes to appear before the concerned Court, on the issuance of summons/warrants by such Court. The petitioner shall

attend the trial on each date, unless exempted, and in case of appeal, also promise to appear before the higher Court, in terms of Section 437-A CrPC.

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

WhatsApp number (if any), email (if any), and details of personal bank account(s) (if available).

d) The petitioner shall join investigation as and when called by the Investigating Officer or any Superior Officer. Whenever the investigation takes

place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5

PM. The petitioner shall not be subjected to third-degree methods, indecent language, inhuman treatment, etc.

e) The petitioner shall cooperate with the investigation at all further stages as may be required, and in the event of failure to do so, it will be open for

the prosecution to seek cancellation of the bail granted by the present order.

f) 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.

g) Once the trial begins, the petitioner shall not in any manner try to delay the trial. The petitioner undertakes to appear before the concerned Court, on

the issuance of summons/warrants by such Court. The petitioner shall attend the trial on each date, unless exempted.

h) In addition to standard modes of processing service of summons, the concerned Court may serve 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) The concerned Court may also inform the accused about the issuance of bailable and non-bailable warrants through the modes mentioned above.

j) In the first instance, the Court shall issue summons and may send such summons through SMS/ WhatsApp message/ E-Mail.

k) In case the petitioner fails to appear before the Court on the specified date, then the concerned Court may issue bailable warrants, and to enable

the accused to know the date, the Court may, if it so desires, also inform the petitioner about such Bailable Warrants through SMS/ WhatsApp

message/ E-Mail.

l) Finally, if the petitioner still fails to put in an appearance, then the concerned Court may issue Non-Bailable Warrants to procure the petitioner's

presence and send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.

m) The petitioner shall intimate about the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, within

thirty days from such modification, to the Police Station of this FIR, and also to the concerned Court.

n) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may apply for cancellation of bail of the

petitioner. Otherwise, the bail bonds shall continue to remain in force throughout the trial and also after that in terms of Section 437-A of the CrPC.

o) During the trial's pendency, if the petitioner repeats the offence or commits any offence where the sentence prescribed is seven years or more,

then the State may move an appropriate application for cancellation of this bail.

The learned Counsel representing the accused and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all

conditions of this bail order to the petitioner, in vernacular and if not feasible, in Hindi or English.

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 before 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.

Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing bail bonds

in the terms described above.

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

with 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 petition stands allowed in the terms mentioned above. All pending applications, if any, stand closed.

Copy Dasti.