A person can apply for bail directly to the High Court without invoking the jurisdiction of Sessions Court: Himachal Pradesh High Court
Police officers cannot arrest automatically when the offence is punishable with imprisonment for a term that may be less than seven years or which may extend to seven years, whether with or without a fine. The High Court bench consisting of J. Anoop Chitkara relied on various case laws while granting bail to the petitioner in the matter of Parveen Kumar v. State of Himachal Pradesh [Cr.MP(M) No. 141 of 2021]. The petitioner was accused of commission of offences punishable under the Scheduled Tribes (Prevention of Atrocities) Act, 1989. Section 3(1) of the said Act is a cognizable and non-bailable offence, the petitioner came up under Section 439 of the Code of Criminal Procedure, 1973, seeking permission to surrender before the court and simultaneously seeking release on ad-interim bail. Briefly, the allegations against the petitioner were of using derogatory words prohibited under the Act. The learned counsel for the petitioner stated that the petitioner had no criminal past relating to offences prescribing a sentence of 7 years and more, or when on conviction, the sentence imposed was of more than 3 years. The counsel for State argued that if the Court was inclined towards granting bail, then it should be made subject to very strict conditions. The High Court found that the petitioner had straightaway filed the bail petition before the court which the Court said was permissible as in the case of Mohan Lal v. Prem Chand [AIR 1980 HP 36], the full judge bench held that “a person can directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge”. The court turned to the case of Ami Chand v. State of H.P. [CrMPM 1116 of 2020], wherein it was held that “in the absence of any riders or restrictions under S. 439 Crpc, any person accused of a non-bailable offence, under any penal law, including the violations under the Scheduled Caste &amp; Scheduled Tribes (Prevention of Atrocities) Act, 1989, can apply under section 439 Crpc, offering to surrender and simultaneously seeking interim bail”. On receipt of such an application, the Court is to satisfy that the applicant stands arraigned as an accused in an FIR disclosing Non-bailable offences and if all the parameters are complete, then the Court is under an obligation to accept surrender. Since custody is the sine qua non for considering a bail application, the Court is under an obligation to consider the prayer for interim bail after the said deemed custody. The Court hence released the petitioner on bail and subjected him to furnish a personal bond.  Click here to read the judgement                                                                                                                         
 Hig h C o urt of H.P on 31 01 HCHP 1 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLACr.MP(M) No.1421Date of Decision: January 27 2021.Parveen Kumar ...Petitioner.VersusState of H.P. ...Respondent.Coram:The Hon’ble Mr. Justice Anoop Chitkara Judge.Whether approved for reporting 1 NO For the petitioner:Mr. B.B. Vaid and Mr. Rakesh Sharma Advocates. For the respondent:Ms. Seema Sharma Dy. A.G. Mr. Manoj Bagga and Mr.Shreyak Sharda Asstt. A.Gs. for the State. FIR No.DatedPolice StationSections194 of202018.12.2020Palampur District Kangra Himachal Pradesh. Section 3(1) of theSC&ST andSections 504 506and 34 of IPC. Anoop Chitkara Judgeof the said Act being cognizable and non bailableoffences has come up under section 439 of the Code of Criminal Procedure 1973 seeking permission to surrender before this Court and simultaneously seekingrelease on ad interim bail. 1Whether reporters of Local Papers may be allowed to see the judgment Hig h C o urt of H.P on 31 01 HCHP 2 2.A perusal of the petition reveals that the petitioner straightaway filed the bailpetition before High Court which is permissible given the decision of a three JudgesBench of HP High Court in Mohan Lal v Prem Chand AIR 1980 HP 36 wherein the Full bench holds that a person can directly apply for an anticipatorybail or regular bail to the High Court without first invoking the jurisdiction of theSessions Judge. 3.The bail petition is silent about criminal history however learned counsel forthe bail petitioner states on instructions that the petitioner has no criminal pastrelating to the offences prescribing sentence of seven years and more or when onconviction the sentence imposed was more than three years. Status report standsfiled and taken on record and the same also does not mention any criminal past of theaccused. 4.Briefly the allegations against the petitioner are using derogatory wordsprohibited under the Scheduled Caste & Scheduled TribesAct 1989 can apply under section 439 CrPC offering to surrender and simultaneously seekinginterim bail. On receipt of such application the Court is to satisfy that the applicantstands arraigned as an accused in a FIR disclosing Non Bailable offences. If all theseparameters are complete then the Courts are under an obligation to accept surrender. Hig h C o urt of H.P on 31 01 HCHP 3 Since custody is a sine qua non for considering a bail application the Court is underan obligation to consider the prayer for interim bail after this deemed custody. Allsuch pleas fall under the scope of S. 439 CrPC itself and there is no need to invokeS. 482 CrPC. After that granting or refusing interim bail is a Judicial function.7.The accused petitioner is present in Court and has offered to surrender whichis accepted and thus is in deemed custody of the Court. 8.The Counsel for the petitioner contends that the complainant made false andexaggerated allegations invoking SCSTPOA with a view to deprive the opportunityof S. 438 CrPC.9.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. 10.Reasoning: Keeping in view the nature of allegations and the sentenceprescribed therein the petitioner has made out a case for bail. 11.In the present case the maximum sentence imposable for the offencesmentioned in FIR attracts the application of the directions passed in Arnesh Kumarv. State of Bihar 8 SCC 273 wherein Hon’ble Supreme Courtdirected all the State Governments to instruct its police officers not to arrestautomatically when the offence is punishable with imprisonment for a term whichmay be less than seven years or which may extend to seven years whether with orwithout fine.12.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 the Hig h C o urt of H.P on 31 01 HCHP 4 evidence produced the Courts can impose restrictive conditions.13.Given the above reasoning coupled with the peculiar facts and circumstancesof the case the Court is granting bail to the petitioner subject to strict terms andconditions which shall be over and above and irrespective of the contents of theform of bail bonds in chapter XXXIII of CrPC 1973.14.The petitioner shall be released on bail in the FIR mentioned above subject tohis furnishing a personal bond of Rs. Twenty five thousandto thesatisfaction of the RegistrarAdditional Registrarof this Court or any such Officer as may be authorised in this behalf by any of the Registrars ofthis Court. Given the conduct of the petitioner to offer surrender before this Court shows that such an accused did not try to abscond hence there is no need for suretybonds.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)Once the trial begins the petitioner shall not in any manner try to delaythe proceedings and undertakes to appear before the concerned Court and toattend the trial on each date unless exempted. In case of an appeal on this verybond the petitioner also promises to appear before the higher Court in terms ofSection 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. Hig h C o urt of H.P on 31 01 HCHP 5 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]: 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.16.During the trial s pendency if the petitioner repeats or commits anyoffence where the sentence prescribed is more than seven years or violatesany condition as stipulated in this order the State may move an appropriateapplication before this Court seeking cancellation of this bail. Otherwise thebail bonds shall continue to remain in force throughout the trial and after thatin terms of Section 437 A of the CrPC.17.Any Advocate for the petitioner and the Officer in whose presence thepetitioner puts signatures on personal bonds shall explain all conditions ofthis bail order in vernacular and if not feasible in Hindi.18.In case the petitioner finds the bail condition(s) as violatingfundamental human or other rights or causing difficulty due to any Hig h C o urt of H.P on 31 01 HCHP 6 situation then for modification of such term(s) the petitioner may file areasoned application before this Court and after taking cognizance even tothe Court taking cognizance or the trial Court as the case may be and suchCourt shall also be competent to modify or delete any condition.19.This order does not in any manner limit or restrict the rights of thePolice or the investigating agency from further investigation per law.20.Any observation made hereinabove is neither an expression of opinion on themerits of the case nor shall the trial Court advert to these comments.21.In return for the protection from incarceration the Court believes that theaccused shall also reciprocate through desirable behavior.22.There would be no need for a certified copy of this order and any Advocate forthe Petitioner can download this order from the official web page of this Court andattest it to be a true copy.The petition stands allowed in the terms mentioned above. Anoop Chitkara Vacation Judge.January 27 2021 (ks). 