Accused has a choice to either furnish surety or give fixed deposit in case of bail: Himachal Pradesh High Court

 Hig h C o urt of H.P on 27 01 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr.MP(M) No. 621Reserved on: 19th January 2021.Date of Decision: 20th January 2021.Dinesh Kumar ...Petitioner.VersusState of H.P. ...Respondent.Coram:The Hon’ble Mr. Justice Anoop Chitkara Vacation Judge.Whether approved for reporting 1 NOFor the petitioner:Mr. Onkar Jairath & Mr. M.A. Safee Advocates. For the respondent:Mr.Ajay Vaidya Sr. Addl. A.G. with Mr. BhupenderThakur Mr. Gaurav Sharma Deputy Advocates Generaland Mr. Rajat Chauhan Law Officer. THROUGH VIDEO CONFERENCEFIR No.DatedPolice StationSections181 207.11.2020Paonta Sahib DistrictSirmaur H.P.376 IPC & 3(i)(w)(ii) SCST ActAnoop Chitkara Vacation Judge. The petitioner incarcerating upon his arrest for establishing sexualrelation with a female aged 30 years and belonging to Scheduled Caste community under the false promise of marriage has come up before this Court seeking regularbail on the ground that he is innocent.2.Earlier the petitioner had filed a petition under Section 439 CrPC before theconcerned Special Judge. However vide order dated 12.1.2021 Learned SpecialJudge Sirmaur at Nahan HP dismissed the petition.3.In Para 8 of the bail application the petitioner declares having no criminalhistory. The status report also does not mention any criminal past of the accused.1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 27 01 HCHP 2 4.Briefly the allegations against the petitioner which led to the registration ofthe FIR mentioned above are that on 7.11.2020 the Police official received awritten complaint from the victim. She complained that accused Dinesh Kumarstayed with her for four years under the promise of marriage and continued to havesexual relations during this entire period on uncountable numbers. After that he alsopromised the victim to solemnize Court Marriage in the year 2021 however discreetly engaged with some other girl. When confronted he told the victim thatsuch engagement was because of the family pressure and he was unhappy with thesame. Even after that he continued to have coitus with her. He would also give hercontraceptive pills. Last time he established coitus with her on 1.11.2020. 5.Learned Counsel for the petitioner contends that incarceration before the proofof guilt would cause grave injustice to the petitioner and family.6.While opposing the bail the alternative contention on behalf of the State is thatif this Court is inclined to grant bail such a bond must be subject to very stringentconditions.7.The possibility of the accused influencing the investigation tampering withevidence intimidating witnesses and the likelihood of fleeing justice can be takencare of by imposing elaborative and stringent conditions. In Sushila Aggarwal5 SCC 1 Para 92 the Constitutional Bench held that unusually subject to theevidence produced the Courts can impose restrictive conditions.8.The age of the victim is 30 years. She continued to have coitus with him forfour years. Even when she came to know that he has been engaged with some othergirl she believed him and continued to have sex with him. Such conduct would notjustify further incarceration of the petitioner.9.An analysis of entire evidence does not justify further incarceration of theaccused nor is going to achieve any significant purpose. Without commenting on themerits of the case the stage of the investigation and the period of incarcerationalready undergone would make out a case for bail. 10.In the facts and circumstances peculiar to this case the petitioner makes out acase for release on bail.11.Given the above reasoning the Court is granting bail to the petitioner subject Hig h C o urt of H.P on 27 01 HCHP 3 to strict terms and conditions which shall be over and above and irrespective of thecontents of the form of bail bonds in chapter XXXIII of CrPC 1973.12.In Manish Lal Shrivastava v State of Himachal Pradesh CrMPM No. 1734of 2020 after analysing judicial precedents this Court observed that any Courtgranting bail with sureties should give a choice to the accused to either furnish suretybonds or give a fixed deposit with a further option to switch over to another.13.The petitioner shall be released on bail in the FIR mentioned above subject tohis furnishing a personal bond of Rs. Twenty five thousandand shallfurnish two sureties of a similar amount to the satisfaction of the Judicial Magistratehaving the jurisdiction over the Police Station conducting the investigation and incase of non availability any Ilaqa Magistrate. Before accepting the sureties theconcerned 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 inmind the Jurisprudence behind the sureties which is to secure the presence of theaccused.14.In the alternative the petitioner may furnish aforesaid personal bond andfixed deposit(s) for Rs. Twenty five thousand onlymade in favour of"Chief Judicial Magistrate District Kangra H.P. " a)Such Fixed deposits may be made from any of the banks where the stakeof the State is more than 50% or any of the stable private banks e.g. Bank ofAmerica Chase HSBC City Bank HDFC Bank ICICI Bank Kotak MahindraBank etc. with the clause of automatic renewal of principal and liberty of theinterest reverting to the linked account. b)Such a fixed deposit need not necessarily be made from the account ofthe 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 theoriginal receipt shall be handed over to the concerned Court. d)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. e)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. f)After that the petitioner shall hand over such proof along withendorsement to the concerned Court. g)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. Hig h C o urt of H.P on 27 01 HCHP 4 h)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. 15.The furnishing of the personal bonds shall be deemed acceptance of thefollowing and all other stipulations terms and conditions of this bail order:a)The petitioner to execute a bond for attendance to 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 personalbank 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 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.e)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]: Hig h C o urt of H.P on 27 01 HCHP 5 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.18.The petitioner shall surrender all firearms ammunition if any along with thearms license to the concerned authority within 30 days from today. However subjectto the provisions of the Indian Arms Act 1959 the petitioner shall be entitled torenew and take it back in case of acquittal in this case.19.The petitioner shall neither stare stalk make any gestures remarks call contact message the victim either physically or through phone call or anyother social media nor roam around the victim s home.20.During the trial s pendency if the petitioner repeats or commits any offencewhere the sentence prescribed is more than seven years or violates any condition asstipulated in this order the State may move an appropriate application before thisCourt seeking cancellation of this bail. Otherwise the bail bonds shall continue toremain in force throughout the trial and after that in terms of Section 437 A of theCrPC.21.Any 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.22.In case the petitioner finds the bail condition(s) as violating fundamental human or other rights or causing difficulty due to any situation then formodification 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.23.This order does not in any manner limit or restrict the rights of the Police orthe investigating agency from further investigation per law.24.Any observation made hereinabove is neither an expression of opinion on the Hig h C o urt of H.P on 27 01 HCHP 6 merits of the case nor shall the trial Court advert to these comments.25.In return for the protection from incarceration the Court believes that theaccused shall also reciprocate through desirable behavior.26.The SHO of the concerned Police Station or the Investigating Officer shallarrange to send a copy of this order preferably a soft copy to the victim at theearliest. In case the victim notices any objectionable behavior or violation of anyterms or conditions of this order the victim may inform the SHO of the concernedPolice Station or the Trial Court or even to this Court.27.There would no need for a certified copy of this order for furnishing bonds andany Advocate for the Petitioner can download this order from the official web pageof this Court and attest it to be a true copy. In case the attesting officer or the Courtwants 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 (ps). 

Summary: Courts can impose restrictive conditions upon grant of bail subject to the evidence produced. The High Court bench consisting of J. Anoop Chitkara laid down strict conditions upon the petitioner seeking grant of bail in the case of Dinesh Kumar v. State of Himachal Pradesh [Cr. MP(M) No. 67 of 2021]. The petitioner came up to the court seeking regular bail on the ground that he was innocent. The petitioner had been accused of establishing sexual relations with the victim, a female aged 30 years and belonging to the Scheduled Caste Community, under the false promise that he would marry her. The victim filed an FIR against the petitioner claiming that he had stayed with her for four years under the promise of marriage and continued to have sexual relations during the entire period. He also promised the victim to solemnize Court Marriage in 2021. However, he was discreetly engaged with some other girl and upon confrontation about the same, he told the victim that such engagement was because of the family pressure and he was unhappy with the same. He continued to have coitus with her after this and even gave her contraceptive pills. The Learned Counsel for the petitioner contended that incarceration before the proof of guilt would cause grave injustice to the petitioner and his family. The Counsel for the State on the other hand contended that if the Court was inclined towards granting him bail then such a bond must be subject to very stringent conditions. This would take care of any possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses and the likelihood of fleeting justice. Relying on the case of Sushila Aggarwal v. State (NCT of Delhi) [(2020) 5 SCC 1, Para 92], the counsel argued that the Court could impose restrictive conditions subject to the evidence produced. The High Court, upon analysis of the case, stated that the victim continued to have coitus with the petitioner even when she came to know that he was engaged with another woman, and hence, any further incarceration of the petitioner would not be justified. Due to this, the petitioner is eligible for bail. Relaying on the case of Manish Lal Shrivastava v. State of Himachal Pradesh [CrMPM No. 1734 of 2020], the 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”. Further, the Court asked the petitioner to surrender all firearms along with license within 30 days, which he, subject to the provisions of the Indian Arms Act, 1959, could claim back in case of acquittal. Further that the bail could be cancelled if during the pendency of the trial the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or if he violated any condition stipulated in the present order. Click here to read the judgement