Vishal vs State Of Haryana

Anoop Chitkara, J

FIR No

Dated

Police Station

Section

481

25.09.2022

Civil Line, Sonipat, District Sonipat

307, 324, 34 IPC (Sec on 326 IPC added later on)

The pe oner, incarcera ng upon his arrest in the FIR cap oned above, came up before this Court under Sec on 439 of Code of Criminal Procedure, 1973 (CrPC) seeking bail

In paragraph 6 of the bail Petition, the accused de clares that he has no criminal antecedents.

Petitioner's counsel prays for bail by imposing any stringent condions.The Petitioner contends that the pre-trial incarceraon w ould cause an irreversible injusce to the Petitioner and family.

The State opposes bail.

REASONING:

The allegaons are on night when complainant who is a chowkidar was performing his duty found boys consuming liquor on the main gate of temple. When complainant forbade them from consuming, the boys gave him beangs and injuries.

The present Petitioner gripped the complainant and Sw eat inflicted blows with broken bole.

As per paragraph 5 of the bail Petition, the Petition er is in custody since 28.09.2022. Given the nature of allegaons, and in juries inflicted by the Petitioner, viz- a-viz pre-trial custody, coupled with the other factors peculiar to this case, there would be no jusfiability for further pre-trial incarcera on at this stage, subject to the compliance of terms and condions menoned in this order. Furthermore, the Petitioner is a first offender, and one of the relevant factors would be to provide an opportunity to course-correct. It is clarified that the other co accused shall not be entled to claim bail on the grounds of parity.

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 GudikanNarasimhulu 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 influencing the invesgaon, tampering with evidence, inmidang witnesses, and the likelihood of fleeing jusce, can be taken care 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 condion s.

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 requir ed in any other case, 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 court, and in case of non-availability, any nearest Ilaqa Magistrate/duty Magistrate. Before accepng the surety, the concern ed court must sasfy that if the accused fails to appear in court, then such surety can produce the accused before the court.

OR

(b) Petitioner to hand over to the concerned court a fixed deposit for Rs. Ten Thousand only (INR 10,000/-), with the clause of automac re newal of the principal and the interest reverng to the linked account, made in fa vor of the ‘Chief Judicial Magistrate’ of the concerned district. Said 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). 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.

(d). It shall be the total discreon of the Petitione r to choose between surety bond and fixed deposit. It shall also be open for the Petitione r to apply to the Invesgator or the concerned court to substute the fixed deposit with surety bonds and vice-versa.

(e). On the reverse page of personal bond, the pe oner shall menon her/his permanent address along with the phone number, preferably that number 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 concern ed police staon and the concerned court.

(f). 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.

Given the nature of the allegaons and the other circumstances peculiar to this case, the Petitioner shall surrender all weapons, fire arms, ammunion, if any, along with the arms license to the concerned authority within fieen days from release from prison and inform the Invesgator about the complia nce. However, subject to the Indian Arms Act, 1959, the Petitioner shall be entle d to renew and take it back in case of acquial in this case, provided otherwise permis sible in the concerned rules.

Till the compleon of the trial, the Petitioner sh all not contact, call, text, message, remark, stare, stalk, make any gestures or express any unusual or inappropriate, verbal or otherwise objeconable behavior towards the vic m and vicm's family, either physically, or through phone call or any other social media, through any other mode, nor shall unnecessarily roam around the vicm's hom e.

Given the nature of the allegaons and the othe r circumstances peculiar to this case, the Petitioner shall not enter the property, wo rkplace, and the residence of the vicm and shall also not enter within a radius of fi ve-hundred meters from the vicm’s home ll the recording of the statements of all non -official and informal witnesses in the trial. This Court is imposing this condion to rule out any aempt by the accused to incapacitate, influence, or cause any discomfort to the vicm. Reference be made to Vikram Singh v Central Bureau of Invesgaon, 2018 All SCR (Crl.) 458); and Aparna Bha v. State of Madhya Pradesh, 2021 SCC Online SC 230.

During the trial's pendency, if the Petitioner rep eats or commits any offence where the sentence prescribed is more than seven years or violates any condion as spulated in this order, it shall always be permiss ible to the respondent to apply for cancellaon of this bail. It shall further be open for any invesgang agency to bring it to the noce of the Court seized of the subsequent applicaon that the accused was earlier cauoned not to indulge in criminal acvie s. Otherwise, the bail bonds shall remain in force throughout the trial and aer that in Secon 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condio ns.

The condions menoned above imposed by this cou rt are to endeavour that the accused does not repeat the offence and to ensure the safety of the witnesses, vicm, and their families. In Mohammed Zubair v. State of NCT of Delhi, Writ Petition (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 condions impose d by the Court must not only have a nexus to the purpose that they seek to serve but must also be proporonal to the purpose of imposing them. The courts while imposing bail condions must balance the liberty of the accused and the necessity of a fair trial. While doing so, condions that would result in the deprivaon of rights and l iberes must be eschewed.”

Any Advocate for the Petitioner and the Officer in w hose presence the Petitioner puts signatures on personal bonds shall explain all condions of this bail order in any language that the Petitioner understands.

If the Petitioner finds bond amount beyond social and financial reach, it may be brought to the noce of this Court for appropriate reducon. Further, if the Petitioner finds bail condion(s) as violang fundamental, huma n, or other rights, or causing difficulty due to any situaon, then for modificaon o f such term(s), the Petitioner may file a reasoned applicaon before this Court, and a er 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 condion.

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

In case the Invesgator/Officer-In-Charge of the c oncerned Police Staon arraigns another secon of any penal offence in this FIR, and if the new secon prescribes maximum sentence which is not greater than the sec ons menoned above, then this bail order shall be deemed to have also been passed for the newly added secon(s). However, suppose the newly inserted secons prescri be a sentence exceeding the maximum sentence prescribed in the secons menoned above, then, in that case, the Invesgator/Officer-In-Charge shall give the Petitioner noce of a minimum of seven days providing an opportunity to avail the remedies available in law.

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 viola on 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 ord er 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 bo nds.

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