Vikas vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, on being arraigned as accused of commission of offences punishable under Sections 3(1)(i) PZ of the Scheduled Caste & Scheduled

Tribes (Prevention of Atrocities) Act, 1989 and Sections 448, 451 of the Indian Penal Code, in FIR No.18 of 2020, dated 22.1.2020, registered in

Police Station, Patlikoohal, Kullu, District Kullu, HP, has come up under Section 439 of the Code of Criminal Procedure, 1973, seeking permission to

surrender before this Court, and simultaneously seeking release on ad-interim bail.

Briefly, the allegations against the petitioner are using derogatory words prohibited under the Scheduled Caste & Scheduled Tribes (Prevention of

Atrocities) Act, 1989.

The contents of FIR/status report reveal that the petitioner stands arraigned as an accused for the commission of Non-bailable offences. Based on

instructions, Ld. Counsel for the respondent states that the petitioner stands arraigned as an accused for the commission of Non-bailable offences.

In Ami Chand v. State of H.P., CrMPM 1116 of 2020, Para 65, this Court held that in the absence of any riders or restrictions under S. 439 CrPC,

any person accused of a non-bailable offence, under any penal law, including the violations under the Scheduled Caste & Scheduled Tribes

(Prevention of Atrocities) Act, 1989, can apply under section 439 CrPC, offering to surrender and simultaneously seeking interim bail. On receipt of

such application, the Court is to satisfy that the applicant stands arraigned as an accused in a FIR disclosing Non-Bailable offences. If all these

parameters are complete, then the Courts are under an obligation to accept surrender. Since custody is a sine qua non for considering a bail

application, the Court is under an obligation to consider the prayer for interim bail after this deemed custody. All such pleas fall under the scope of S.

439 CrPC itself, and there is no need to invoke S. 482 CrPC. After that, granting or refusing interim bail is a Judicial function.

The accused/petitioner is present in Court and has offered to surrender, which is accepted, and thus, is in deemed custody of the Court.

The petitioner states that he has no criminal history relating to the offences prescribing sentence of greater than seven years of imprisonment or

when on conviction, the sentence imposed was more than three years.

The Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family, and on

the grounds of false implication with a view to deprive the opportunity of S. 438 CrPC.

While opposing any protection, the alternative contention on behalf of the State is that if this Court grants protection, 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 entire evidence does not justify incarceration of the accused, nor is going to achieve any significant purpose. Without commenting

on the merits of the case, the conduct of the accused to voluntarily surrender, makes out a case for interim 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.

Given the above analysis and reasoning, the Court is granting interim bail to the petitioner, subject to the imposition of following conditions, which

shall be over and above, and irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC. Consequently, till the final disposal of

this petition, the petitioner shall be released on interim bail in the present case, connected with the FIR mentioned above, on furnishing a personal bond

of INR 5,000/, (INR Five thousand only) to the satisfaction of the Registrar Judicial or any officer authorized by him, or by Additional Registrar

Judicial of this Court, during the course of the day. The furnishing of bail bonds shall be deemed acceptance of all stipulations, terms, and conditions of

this bail order:

a) 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). 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 the concerned Court, if such stage arises.

b) The petitioner shall join investigation as and when called by the Investigating officer or any superior officer.

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) Once the trial begins, the appellant 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.

e) There shall be a presumption of proper service to the petitioner about the date of hearing in the concerned Court, even if it takes place through

SMS/ WhatsApp message/ E-Mail/ or any other similar medium, by the Court.

f) The petitioner shall abstain from all similar activities. If done, then while considering bail in the fresh FIR, the Court shall take into account that even

earlier, the Court had cautioned the accused not to do so.

g) This bail order shall ipso facto vacate if the accused attempts to browbeat the victim or repeats the offence.

h) 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.

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. Such Court shall also be competent to modify or delete any condition.

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.

The petitioner shall join investigation as and when called by the Investigator/SHO or on their behalf.

Petition allowed. Pending applications, if any, stand closed.

Copy dasti.