Accused being granted bail should be given a choice between surety bonds and fixed deposits: High Court of Himachal Pradesh

 Hig h C o urt of H.P on 06 06 CIS 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MP(M) No. 9121 Date of Decision: June 4 2021 Mohit Kumar ...Petitioner Versus State of H.P. ...Respondent Coram: The Hon’ble Mr. Justice Anoop Chitkara Judge. Whether approved for reporting 1NO ____________________________________________________________________ For the petitioner: Mr. Vijay Kumar Arora Advocate. For the respondent: Mr. Nand Lal Thakur Addl. Advocate General. THROUGH VIDEO CONFERENCE FIR No. Dated Police Station Sections 305 20 02 12 2020 Bhuntar Distt Kullu HP 342 323 364A 388 504 506 120B of IPC Anoop Chitkara Judge. The petitioner who is in custody for around five months has come up before this Court seeking regular bail on the grounds that investigation is complete the police report under section 173CrPC stands filed and the accused is in custody for long time. 2. Earlier the petitioner had filed the following bail petitions under Section 439 CrPC: a) Bail application No.2620 filed before the Court of learned Additional Sessions Judge Kullu was dismissed by the said Court vide order dated 24.12.2020. 3. Though the bail petition is silent about criminal history but the status report reveals the following criminal history of the petitioner: 1 Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 06 06 CIS 2 FIR No.298 dated 21.11.2020 registered under Sections 364A 342 506 and 120B of IPC in Police Station Bhuntar District Kullu. 4. Briefly the allegations against the petitioner which led to registration of an FIR mentioned above are as under: That on 2nd December 2020 complainant informed the Police Station Sadar Kullu about kidnapping and extortion of money. He stated that two months ago Krishna Pujaribecame his Facebook friend. He did not know her prior to this. In October 2020 she sent a message on Facebook and started chatting with him. After 10 12 days she won over him and conveyed that they can be good friends.In November 2020 he received a phone call from Mobile No.78767 48330 informing him that she is his Facebook friend Krishna. She said that she would also make one of her friends as his Facebook friend and further that they can also meet alone day or night. In the first week of November 2020 they kept on texting on Facebook. On 17th November 2020 Krishna Pujariagain made a phone call asking him to meet her near Shani Mandir at Bhuntar at 7.00 p.m. She also told him to bring one bottle of liquor and two bottles of beer. After that complainant purchased the aforesaid bottles of liquor and beer and reached at Bhuntar Chowk near Shani Mandir in his Car. At that time one Omni Van No. HP34C 9244 came and stopped near him. Two women came out and sat in his car. One woman introduced her as Krishnaand another SarnaOn 17th November 2020 the complainant again received a phone call from Mobile No.90151 00075 from a woman who told her name as SarnaAt a place near Kannoj she asked him to stop the vehicle. At that place one Scorpio number applied for was parked and five people were present in the said vehicle. Later on their names were known as Krishna Surender KumarAjay KumarAshu Kumarand Mohit Kumarand they started beating him. He inquired that why are they beating him then they said that where was he taking his sister and they will not leave him alive. They forcibly made him to sit in the vehicle and told him that they would register a rape case against him and if he wants to save himself he would have to pay a sum of rupees ten lacs. On this he told them that neither he had forcibly brought Sarna nor he did any wrong act with her then why were they beating him. On this Sarna said that he cannot save himself and at that time Krishna was also standing along with Sarna. Krishna told him to pay money otherwise they would not leave him alive. After that they took him to Dohranallah and again gave him beatings. Subsequently they confined him in a room in the house of Sarna. Somebody has also driven his vehicle from the original spot. He got afraid and thought of paying money to save his life. He started negotiating with them for a sum of rupees one or two lacs and told them to make him speak to his friend Chetan Guleria.After that Krishna gave him mobile phone and said that if he does not transfer the money then they would kill him. Complainant spoke with Chetan and asked him to bring rupees 1 2 lacs to Hig h C o urt of H.P on 06 06 CIS 4 Dohranallah and told him that he will tell the reasons later. After two hours Chetan Mohinder and Govind who are the friends of the complainant brought money and reached at Dohranallah. Surinder brought them further. At that place Sarna Krishna Surender and husband of Sarna Tara Chand were standing and inquired from them that how much money they were paying. On which those people told about one lac rupees and showed their inability to pay ten lacs rupees. Chetan handed over rupees one lac twenty three thousand to them. Krishna and Sarna told the complainant that henceforth he would have to work for them. On this the complainant inquired from them that what kind of work he has to do. Then Mohar Singhthe petitioner Pradeep Kumarand Surendertold him that he would have to trap the people and he would get a commission of 10%. On this to save his life he agreed to work as their pimp. They deleted the data from his phone and let him go. All these allegations led to the registration of the aforesaid FIR. 5. Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family. 6. On the contrary the contention on behalf of the State is that the accused is a proven habitual offender and given his past conduct he is likely to repeat the offence. He further insists that if this Court is inclined to grant bail then such a bond must be subject to very stringent conditions. 7. 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 5 SCC 1 Para 92 the Constitutional Bench held that unusually subject to the evidence produced the Courts can impose restrictive conditions. REASONING: 8. Under no circumstances the conduct of the petitioner is condonable or forgivable if proven to be true. However a limited question before this Court is to grant or bail or not. These observations nowhere suggest his innocence or lesser role. The difficulty is that due to the COVID 19 pandemic trial Courts are already Hig h C o urt of H.P on 06 06 CIS 5 clocked with many trials due to which even the petitioner is also incarcerating for a long time. The period of incarceration already undergone would also be an additional factor for the grant of bail. Therefore the cumulative effect of all the elements would certainly make out a case for bail at this stage. Thus in the facts and circumstances peculiar to this case and without commenting on the merits the present bail application is allowed. 9. 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. 10. In Manish Lal Shrivastava v State of Himachal Pradesh CrMPM No. 17320 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. 11. The petitioner shall be released on bail in the FIR mentioned above subject to his furnishing a personal bond of Rs. Twenty five thousandand shall furnish two sureties of a similar amount 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. 12. In the alternative the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Twenty five thousand onlymade in favour of "Chief Judicial Magistrate District Kullu 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 Hig h C o urt of H.P on 06 06 CIS 6 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. 13. 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 numbere mailand details of personal bank account(s)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. Hig h C o urt of H.P on 06 06 CIS 7 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 Mailand any instant messaging service such as WhatsApp etc.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. 14. 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. 15. The petitioner shall neither stare stalk make any gestures remarks call contact message the victim either physically or through phone call or any other social media nor roam around the victim s home. Hig h C o urt of H.P on 06 06 CIS 8 16. The petitioner shall not enter within a radius of one kilometer from the house of the victim. This Court is imposing this condition to rule out any discomfort to the victim. Reference be made to Vikram Singh v Central Bureau of Investigation 2018 All SCR458) and Aparna Bhatt v. State of Madhya Pradesh 2021 SCC Online SC 230. 17. 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. 18. 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. 19. 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. 20. This order does not in any manner limit or restrict the rights of the Police or the investigating agency from further investigation per law. 21. 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. 22. In return for the protection from incarceration the Court believes that the accused shall also reciprocate through desirable behavior. 23. 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. Hig h C o urt of H.P on 06 06 CIS 9 24. 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. Anoop Chitkara Judge. June 4 2021 (R.Atal 

Summary: A surety bond is when an amount of cash is paid by a third party on behalf on the accused, with that third party (bondsman) vouching for the defendant to show up to court upon being summoned. However it is always not possibly for an accused to find someone willing to vouch for him and this is why the option of accepting fixed deposits as a form of surety is practical alternative. Giving the bail petitioner the option to choose between surety bonds and fixed deposits was granted by a bench consisting of Justice Anoop Chitkara of the High Court of Himachal Pradesh in the case of Mohit Kumar v State of Himachal Pradesh [Cr.MP(M) No: 918 of 2021] on 4th June 2021. The petitioner, Mohit Kumar, along with eight of his accomplices have been accused of abduction and threat to hurt under Section 364A of the IPC, wrongful confinement under Section 342 of the IPC, criminal intimidation under Section 506 of the IPC and criminal conspiracy under Section 120B of the IPC. The petitioner’s counsel pleaded that incarcerating him before a judgement would be injustice to him and his family, thereby requesting bail from the court. The court noted that if the allegations are true, the conduct of the petitioner is unforgivable. However since the case is still pending and the petitioner has already been imprisoned for the past five months, he will be allowed bail conditional that he strictly follows a set of term and conditions that make sure he cannot contact the victim or try to influence the outcome of the pending case in any manner. Upon analysing the case of Manish Lal Shrivastava v State of Himachal Pradesh [CrMPM No: 1734 of 2020], this court came to the conclusion that any court that is granting bail with sureties should give the accused a choice between giving a fixed deposit or furnishing surety bonds and furthermore allow the option of switching over to another.