Subhash Sahni vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest for alluring and raping a minor girl, has come up before this Court seeking regular bail on the grounds

that the family of the girl forced her to lodge a false complaint to break their love affair.

Earlier, the petitioner had filed the following bail petitions:

(a) Bail application No.269/22 of 2020, filed before Sessions Judge, Sirmour at Nahan, was dismissed vide order dated 18.12.2020.

In Para 13 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the

accused.

Briefly, the allegations against the petitioner are that on 12.09.2020, victim gave a written report to the SHO, Police Station Pachhad, District

Sirmour, H.P. In the said report, she stated that she is resident of Bihar and her husband works with Subhash Chaudhary, a labour contractor. She

alongwith her husband and children stays in a rented accommodation. She stays at home and when her husband would go for work, then in his

absence, Subhash Chaudhary used to visit her house. For the last few days, he was even taking food in her house. After lockdown, company

remained closed for around a month. For the last few days, Subhash Chaudhary started looking at her with bad eyes. However, he belongs to her

village, as such, she never confronted. On some occasions, he even took selfie with her. On 22nd August, 2020, when her husband had gone on work,

then in his absence, he visited her room and after bolting the door, committed wrong act with her. He warned her not to disclose this incident to

anyone. She informed this incident to her husband. On the next day, when her husband confronted the accused, then he gave beatings to her husband.

Due to his bad health, they could not report the matter to the police. Thereafter she sought criminal action. After that, the police got conducted

medical examination of the victim and her husband. Subsequently, on 15th September, 2020, the Judicial Magistrate recorded her statement under

Section 164 of Cr.P.C. In the said statement, she reiterated almost the entire version of her complaint, but omitted to say the reasons for delay and

also made an improvement that the accused had not paid the wages to her husband. After that the investigator arrested the accused on 12th

September, 2020. Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

While opposing the bail, the alternative contention on behalf of the State is that if this Court is inclined to grant bail, such a bond must be subject to

very stringent conditions.

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, (2020) 5 SCC 1, Para 92, the Constitutional Bench held that

unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

REASONING:

The alleged incident happened during the daytime of 22nd Aug 2020, when the victim's husband had gone to work, and the accused was aware of it

because he had insisted on working if he wanted wages. In the evening, the victim informed her husband. On 24th Aug 2020, the victim's husband

confronted the accused, but he and his brother thrashed him. On the next day, the couple left the work and also shifted the residence. After that, the

victim's husband became unwell and was treated in private. On 12th Sept, the victim made a complaint to the Police. Due to a lapse of 20 days, the

medical examination and the scientific evidence lost much significance. Due to shifting of residence and multiple times washing of clothes, eroded

other scientific evidence. Therefore, the only evidence that survived was the statement of the victim, which is undoubtedly the most prime evidence

and would not lose significance because of the absence of other evidence. However, in the statement made by the victim to the Judicial Magistrate,

she stated that during the lockdown, the accused had not paid wages to her husband. Now lockdown was from 23rd Mar 2020 to almost May/June

2020. After that, the lockdown had started lifting. The victim did not state before the Magistrate that her husband became ill and got treatment from

some private person. This aspect was crucial to explain the delay. The Investigator did not enquire from the victim and her husband regarding the

location of such person and did not find his whereabouts. A bare look at the handwriting and the signatures on the complaint made by the victim to the

SHO reveals that she did not scribe it; However, there is no requirement that the victim or their families must scribe a complaint; still, there is no

attempt to know the scribe. It assumes importance because the complaint explains the reasons for the delay. In contrast, the statement made by the

victim under section 164 CrPC is silent qua this and brings in the element of money dispute due to non-payment of wages. The absence of

investigation about the private treatment, which led to delay, needs further probe. An analysis of the factual evidence collected so far, coupled with the

fact that the accused is in prison for around nine months, would not justify further pretrial incarceration of the accused, nor will it achieve any

significant purpose. Thus, without commenting on the case's merits, given the investigation stage and the circumstances peculiar to this case, the

petitioner makes a case for release on bail.

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.

In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, 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.

The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Ten thousand (INR 10,000/-),

and shall furnish two sureties of Rs. Twenty-five thousand (INR 25,000/-) each,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 theCourt,

keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.

In the alternative, the petitioner may furnish a personal bond of Rs. Ten thousand (INR 10,000/-), and fixed deposit(s) for Rs. Ten thousand only

(INR 10,000/-), made in favour of Chief Judicial Magistrate of the concerned district.

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 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.

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 number (if any), e-mail (if any), and details of personal bank account(s) (if available), 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.

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-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any).

[Hon’ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) 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.

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.

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.The petitioner should stay far away from the place of occurrence while on bail. Thus, the

petitioner shall not enter within a radius of one kilometre from her house. This Court is imposing this condition to rule out any attempt by the accused

to incapacitate, influence, or to cause any discomfort to the victim. Reference be made to Vikram Singh v Central Bureau of Investigation, 2018 All

SCR (Crl.) 458); and Aparna Bhatt v. State of Madhya Pradesh, 2021 SCC Online SC 230.A single violation of this condition shall ipso facto lead to

the cancelation of bail.

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.

In case of non-appearance, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure (only the

principal amount without interest) that the Government(s) might incur to produce him before such Court, provided such amount exceeds the amount

recoverable after forfeiture of the bail bonds, and also subject to the provisions of Sections 446 & 446-A of CrPC. The petitioner's failure to reimburse

shall entitle the trial Court to order the transfer of money from the petitioner's bank account(s). However, this recovery is subject to the condition that

the expenditure incurred must be spent to trace the petitioner alone, and it relates to the exercise undertaken solely to arrest the petitioner in that FIR,

and that voyage was not for any other purpose/function what so ever.

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 Hindi.

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.

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

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.

In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

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, and not later than two days. 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.

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.

In the facts and circumstances peculiar to this case, the petition is allowed in the terms mentioned above.

Copy Dasti.