Maintain balance between right to freedom and right to investigation while granting bail: Himachal Pradesh High Court

 Hig h C o urt of H.P on 26 01 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr.MP(M) No. 821Date of Decision: 20.01.2021.Balvinder Singh @ Happy ...Petitioner.VersusState of H.P. ...Respondent.Coram:The Hon’ble Mr. Justice Anoop Chitkara Vacation Judge.Whether approved for reporting 1 No For the petitioner:Mr. Naresh Kaul Advocate. For the respondent:Mr. Bhupinder Thakur Mr. Gaurav Sharma and Ms.Divya Sood Deputy Advocate Generals with Mr. RajatChauhan. THROUGH VIDEO CONFERENCEFIR No.DatedPolice StationSections7 202105.01.2021Nurpur DistrictKangra376 385 and 506 of IPC.Anoop Chitkara Vacation Judge.For indulging in sexual intercourse with the victim aged 27 years thepetitioner is now apprehending arrest came up before this Court under Section 438CrPC seeking anticipatory bail.2.The Petitioner straightaway filed the bail petition before High Court which is permissible given the decision of a three Judges Bench of HP High Court inMohan Lal v Prem Chand AIR 1980 HP 36 wherein the Full bench1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 26 01 HCHP 2 holds that a person can directly apply for an anticipatory bail or regular bail to theHigh Court without first invoking the jurisdiction of the Sessions Judge.3.In Para 9 of the bail application the petitioner declares having nocriminal history. The status report also does not mention any criminal past of theaccused.4.Briefly the allegations against the petitioner are that on 4.1.2021 thevictim sent a written complaint to Superintendent of Police Kangra at Dharamshala.She alleged that she has married lady and has a daughter. Her husband is serving inIndian Army. Whenever her In laws would be out of home then Balvinder( petitioner herein ) would treat them in his vehicle. On 12.11.2020 when she had tovisit Jawalamukhi Temple then they hired a taxi of Balwinder. While returning fromthe temple Balwinder took some photographs with her. During the night he calledher and told her to meet him. On this she told him since he usually visits her homethen he can come any time and on this he reached her home. At that time her father in law and mother in law were not at home. Balwinder reached her home andthen asked him what work he has with her. On this he started fluttering with her.Upon this she told him to refrain but he said that she will have to accede him otherwise he will send the photographs taken by him to her husband and also tellher husband that he has affair with her. It would spoil her marital relation and assuch asked her to do whatever he wanted. After that Balwinder made her lay on thebed undressed her and took her photographs and committed sexual intercoursewith her. He threatened her with dire consequences in case she revealed it toanyone post her photographs on Internet and also kill her daughter. Subsequent tothis every night Balwinder visited her home and forcibly committed sex with her.To save her matrimonial life she did not told this to anyone. Balwinder also took Hig h C o urt of H.P on 26 01 HCHP 3 away money silver ring gold locket and golden chain on the pretext that if she doesnot give the same to him he would reveal everything to her family members. Lastlyon 28.11.2020 Balwinder again committed rape upon her. 5.Mr. Naresh Kaul Ld. Counsel for the petitioner contends that the goldchain which was also mentioned as one of the articles taken from the complainant was returned by the accused today morning to MHC Ravinder. Learned counsel forthe petitioner on instructions further submits that he has no objection in case MHChands over the same to the victim complainant.6.While opposing the bail the alternative contention on behalf of theState is that if this Court is inclined to grant bail such a bond must be subject to verystringent conditions.7.As per the version of the victim when Balwinder wanted to visit herhome at that time her father in law and mother in law were not present at home andknowing this fact she called him. Instead of asking on phone as to what work hashe with her she asked him about the work when he reached her home. The accusedis also young boy of 24 years age whereas the victim is aged about 25 years. Theappreciation of the entire allegations and in the facts and circumstances peculiar tothis case the petitioner makes out a case for release on bail.8.The possibility of the accused influencing the investigation tamperingwith evidence intimidating witnesses and the likelihood of fleeing justice can betaken care of by imposing elaborative and stringent conditions. In SushilaAggarwal 5 SCC 1 Para 92 the Constitutional Bench held that unusually subject to the evidence produced the Courts can impose restrictive conditions. InSumit Mehta v. State of N.C.T. of Delhi and shall furnish two sureties of a similar amount to thesatisfaction of the Investigator. Before accepting the sureties the Attesting Officermust satisfy that in case the accused fails to appear in Court then such sureties arecapable to produce the accused before the Court keeping in mind the Jurisprudencebehind the sureties which is to secure the presence of the accused. 12.In the alternative the petitioner may furnish aforesaid personal bondand fixed deposit(s) for Rs. Twenty five thousand onlymade infavour of "Chief Judicial Magistrate District Kangra H.P. " a)The arresting Officer shall give a time of ten working days to enable theaccused to prepare a fixed deposit.b)Such Fixed deposits may be made from any of the banks where the stake Hig h C o urt of H.P on 26 01 HCHP 5 of the State is more than 50% or any of the stable private banks e.g. HDFCBank ICICI Bank Kotak Mahindra Bank etc. with the clause of automaticrenewal of principal and liberty of the interest reverting to the linked account. c)Such a fixed deposit need not necessarily be made from the account ofthe petitioner and need not be a single fixed deposit. d)If such a fixed deposit is made in physical form i.e. on paper then theoriginal receipt shall be handed over to the concerned Court. e)If made online then its printout attested by any Advocate and ifpossible countersigned by the accused shall be filed and the depositor shallget the online liquidation disabled. f)The petitioner or his Advocate shall inform at the earliest to theconcerned branch of the bank that it has been tendered as surety. Suchinformation 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 asFIR number. g)After that the petitioner shall hand over such proof along withendorsement to the concerned Court. h)It shall be total discretion of the petitioner to choose between suretybonds and fixed deposits. It shall also be open for the petitioner to apply forsubstitution of fixed deposit with surety bonds and vice versa. i)Subject to the proceedings under S. 446 CrPC if any the entire amountof fixed deposit along with interest credited if any shall be endorsed returnedto the depositor(s). Such Court shall have a lien over the deposits up to theexpiry of the period mentioned under S. 437 A CrPC 1973 or until dischargedby substitution as the case may be. 13.The furnishing of the personal bonds shall be deemed acceptance ofthe following and all other stipulations terms and conditions of this bail order:a)The petitioner to execute a bond for attendance in the concernedCourt(s). Once the trial begins the petitioner shall not in any manner try todelay the proceedings and undertakes to appear before the concerned Courtand to attend the trial on each date unless exempted. In case of an appeal onthis very bond the petitioner also promises to appear before the higher Court interms 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 phonenumber(s) WhatsApp numbere mailand details of personal Hig h C o urt of H.P on 26 01 HCHP 6 bank account(s)and in case of any change the petitioner shallimmediately and not later than 30 days from such modification intimate aboutthe change of residential address and change of phone numbers WhatsAppnumber e mail accounts to the Police Station of this FIR to the concernedCourt.c)The petitioner shall not influence browbeat pressurize make anyinducement threat or promise directly or indirectly to the witnesses thePolice officials or any other person acquainted with the facts of the case todissuade them from disclosing such facts to the Police or the Court or totamper with the evidence.d)The petitioner shall neither stare stalk make any gestures remarks call contact message the victim either physically or through phone callor any other social media nor roam around the victim s home. Thepetitioner shall not contact the victim.e)The petitioner shall join the investigation as and when called by theInvestigating Officer or any Superior Officer and shall cooperate with theinvestigation at all further stages as may be required. In the event of failure todo so it will be open for the prosecution to seek cancellation of the bail.Whenever the investigation occurs within the police premises the petitionershall not be called before 8 AM and shall be let off before 5 PM and shall notbe subjected to third degree indecent language inhuman treatment etc.f)In addition to standard modes of processing service of summons theconcerned Court may serve or inform the accused about the issuance ofsummons 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 July10 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 specifieddate in that eventuality the concerned Court may issue bailablewarrants. iii.Finally if the petitioner still fails to put in an appearance in thateventuality the concerned Court may issue Non Bailable Warrants toprocure the petitioner s presence and may send the petitioner to theJudicial custody for a period for which the concerned Court may deemfit and proper to achieve the purpose.14.During the trial s pendency if the petitioner repeats or commits anyoffence where the sentence prescribed is more than seven years or violates any Hig h C o urt of H.P on 26 01 HCHP 7 condition as stipulated in this order the State may move an appropriate applicationbefore this Court seeking cancellation of this bail. Otherwise the bail bonds shallcontinue to remain in force throughout the trial and after that in terms of Section437 A of the CrPC.15.Ld. Advocate for the petitioner and the Officer in whose presence thepetitioner puts signatures on personal bonds shall explain all conditions of this bailorder in vernacular and if not feasible in Hindi.16.In case the petitioner finds the bail condition(s) as violatingfundamental human or other rights or causing difficulty due to any situation thenfor modification of such term(s) the petitioner may file a reasoned application beforethis Court and after taking cognizance even to the Court taking cognizance or thetrial Court as the case may be and such Court shall also be competent to modify ordelete any condition.17.This order does not in any manner limit or restrict the rights of thePolice or the investigating agency from further investigation per law.18.The SHO of the concerned Police Station or the Investigating Officershall arrange to send a copy of this order preferably a soft copy to the complainantand the victim at the earliest. In case the victim notices stalking or any violation ofthis order she may either inform the SHO of the concerned Police Station or theTrial Court or even to this Court.19.Any observation made hereinabove is neither an expression of opinionon the merits of the case nor shall the trial Court advert to these comments.20.In return for the protection from incarceration the Court believes thatthe accused shall also reciprocate through desirable behavior.21.There would no need for a certified copy of this order for furnishing Hig h C o urt of H.P on 26 01 HCHP 8 bonds and any Advocate for the Petitioner can download this order from the officialweb page of this Court and attest it to be a true copy. In case the attesting officerwants to verify the authenticity such an officer can also verify its authenticity andmay download and use the downloaded copy for attesting bonds.The petition stands allowed in the terms mentioned above. Anoop Chitkara Vacation Judge.January 20 2021 (sushma). 

Summary: A balance must be maintained between an individual’s right to freedom and the right to investigate the police while granting bail. It is the duty of the court to see that the order passed must neither interfere with the right of the individual to gain personal freedom nor must it cause any hindrance in the process of investigation being carried out while granting anticipatory bail. This assertion was made by the Himachal Pradesh High Court in the case of Balvinder Singh vs. State of Himachal Pradesh [Cr.MP(M) No. 89 of 2021] presided by J. Anoop Chitkara. In the instant case, the petitioner indulged in sexual intercourse with the victim and threatened to leak her private pictures if she did not continue to provide him sexual favours. The petitioner contended that the victim invited him to her house late at night when her in-laws were not at home. Further, the petitioner filed this petition to apply for anticipatory bail. The honourable Court held that “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, the State may move an appropriate application before this Court, seeking cancellation of this bail. 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.”  The court further held, “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 conditions. This shall not limit or restrict the rights of the Police or the investigating agency from further investigation per law.” The Court referred to the case of Sumit Mehta v. State of N.C.T. of Delhi [(2013)15 SCC 570]. Supreme Court held that while exercising power Under Section 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 investigation of the police. While exercising utmost restraint, the Court can impose conditions countenancing its object as permissible under the law to ensure an uninterrupted and unhampered investigation. Click here to read the judgement