1. Aggrieved by the dismissal of his bail under secƟon 438 CrPC, the accused has come up before this court by filing an appeal under secƟon 14-A of Scheduled Caste & Scheduled Tribes (PrevenƟon of AtrociƟes) Act, 1989, (SCSTPOA), seeking bail.

2. The appellant had filed a bail applicaƟon before the AddiƟonal Sessions Judge, Hisar, which was dismissed on 01.03.2023.

3. In Prathvi Raj v. Union of India, AIR 2020 SC 1036 [LQ/SC/2020/205 ;] , a three-judge bench of Supreme Court read down S. 18 by declaring as follows,

[10]. Concerning the applicability of provisions of secƟon 438 Cr.PC, it shall not apply to the cases under Act of 1989. However, if the complaint does not make out a prima facie case for applicability of the provisions of the of 1989, the bar created by secƟon 18 and 18A (i) shall not apply.

4. In paragraph 12 of the appeal, the accused declares that he has no criminal antecedents.

5. The allegaƟons are abusing the people belonging to the scheduled castes by using the derogatory words prohibited under the Scheduled Caste & Scheduled Tribes (PrevenƟon of AtrociƟes) Act, 1989 (SCSTPOA).

6. Counsel for the appellant submits that he would have no objecƟon in case any stringent condiƟons this Court might put upon the appellant. The appellant’s contenƟon is that the custodial invesƟgaƟon would serve no purpose whatsoever, and the pre-trial incarceraƟon would cause an irreversible injusƟce to the appellant and family.

7. State as well as counsel for the complainant opposes the bail..

REASONING:

8. On primafacie analysis of the nature of allegaƟons and other factors peculiar to this case, there would be no jusƟfiability for custodial or pre-trial incarceraƟon at this stage. Furthermore, the appellant a first offender, and one of the relevant factors would be to provide an opportunity to course-correct. Even a primafacie perusal of paragraphs 6 and 7 of the bail appeal needs consideraƟon for bail.

9. In Gurbaksh Singh Sibbia v State of Punjab, 1980 (2) SCC 565, [LQ/SC/1980/169] (Para 30), a ConsƟtuƟonal Bench of Supreme Court held that the bail decision must enter the cumulaƟve effect of the variety of circumstances jusƟfying the grant or refusal of bail. In Kalyan Chandra Sarkar v Rajesh Ranjan @ Pappu Yadav, 2005 (2) SCC 42, [LQ/SC/2005/64] (Para 18) a three-member Bench of Supreme Court held that the persons accused of non-bailable offences are enƟtled to bail if the Court concerned concludes that the prosecuƟon has failed to establish a prima facie case against him, or despite the existence of a prima facie case, the Court records reasons for its saƟsfacƟon for the need to release such person on bail, in the given fact situaƟons. The rejecƟon of bail does not preclude filing a subsequent applicaƟon. The courts can release on bail, provided the circumstances then prevailing requires, and a change in the fact situaƟon. In State of Rajasthan v Balchand, AIR 1977 SC 2447 [LQ/SC/1977/268] , (Para 2 & 3), Supreme Court noƟceably illustrated that the basic rule might perhaps be tersely put as bail, not jail, except where there are circumstances suggesƟve of fleeing from jusƟce or thwarƟng the course of jusƟce or creaƟng other troubles in the shape of repeaƟng offences or inƟmidaƟng witnesses and the like by the appellant who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the appellant to avoid the course of jusƟce and must weigh when considering the quesƟon of jail. So also, the heinousness of the crime. In GudikanƟ Narasimhulu v Public Prosecutor, (1978) 1 SCC 240, [LQ/SC/1977/333] (Para 16), Supreme Court held that the delicate light of the law favors release unless countered by the negaƟve criteria necessitaƟng that course. In Prahlad Singh BhaƟ v NCT, Delhi, (2001) 4 SCC 280, [LQ/SC/2001/820] Supreme Court highlighted one of the factors for bail to be the public or the State's immense interest and similar other consideraƟons. In Dataram Singh v State of UƩar Pradesh, (2018) 3 SCC 22, [LQ/SC/2018/152] (Para 6), Supreme Court held that the grant or refusal of bail is enƟrely within the discreƟon of the judge hearing the maƩer and though that discreƟon is unfeƩered, it must be exercised judiciously, compassionately, and in a humane manner. Also, condiƟons for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.

10. The possibility of the accused influencing the invesƟgaƟon, tampering with evidence, inƟmidaƟng witnesses, and the likelihood of fleeing jusƟce, can be taken care of by imposing elaboraƟve and stringent condiƟons. In Sushila Aggarwal, (2020) 5 SCC 1, [LQ/SC/2020/137] Para 92, the ConsƟtuƟonal Bench held that unusually, subject to the evidence produced, the Courts can impose restricƟve condiƟons.

11. Without commenƟng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons menƟoned above, the appellant makes a case for bail, subject to the following terms and condiƟons, which shall be over and above and irrespecƟve of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

12. In Mahidul Sheikh v. State of Haryana, CRM-33030-2021 in CRA-S-363-2020, decided on 14-01-2022, Para 53, [Law Finder Doc Id # 1933969], this Court observed,

[53]. The pragmaƟc approach is that while granƟng bail with sureƟes, the “Court” and the “ArresƟng Officer” should give a choice to the accused to either furnish surety bonds or to handover a fixed deposit, or direct electronic money transfer where such facility is available, or creaƟng a lien over his bank account. The accused should also have a further opƟon to switch between the modes. The opƟon lies with the accused to choose between the sureƟes and deposits and not with the Court or the arresƟng officer..

13. Given above, provided the appellant is not required in any other case, the peƟƟoner shall be released on bail in the FIR capƟoned above, in the following terms:

(a). Appellant to furnish personal bond of Rs. Ten thousand (INR 10,000/-); AND

(b) To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the saƟsfacƟon of the concerned invesƟgator/SHO. Before accepƟng the surety, the concerned officer must saƟsfy that if the accused fail to appear in court, then such surety can produce such accused before the court.

OR

(b) Appellant to hand over to the concerned invesƟgator/SHO a fixed deposit for Rs. Ten Thousand only (INR 10,000/-), with the clause of automaƟc renewal of the principal and the interest reverƟng to the linked account, made in favour of the ‘Chief Judicial Magistrate’ of the concerned district. The fixed deposit may be made from any of the banks where the stake of the State is more than 50% or any of the well-established and stable private sector banks. The fixed deposit need not necessarily be made from the peƟƟoner’s account.

(c). In case of the launching of the prosecuƟon, the said fixed deposit be forwarded to the concerned court along with the police report/challan under 173 CrPC.

(d). Such court shall have a lien over the deposit unƟl the case's closure, or discharged by subsƟtuƟon, or up to the expiry of the period menƟoned under S. 437-A CrPC, 1973, and at that stage, subject to the proceedings under S. 446 CrPC, the enƟre amount of fixed deposit, less taxes if any, shall be endorsed/returned to the depositor.

(e). It shall be the discreƟon of the peƟƟoner to choose between surety bonds and fixed deposits. It shall also be open for the peƟƟoner to apply to the InvesƟgator or the concerned court to subsƟtute the fixed deposit with surety bonds and vice-versa.

(f). On the reverse page of personal bond, the peƟƟoner shall menƟon her/his permanent address along with the phone number, preferably that numbers which is linked with the AADHAR, and e-mail (if any). In case of any change in the above parƟculars, the peƟƟoner shall immediately and not later than 30 days from such modificaƟon inƟmate about the change to the concerned police staƟon and the concerned court.

(g). The appellant is to also execute a bond for aƩendance in the concerned court(s) as and when asked to do so. The presentaƟon of the personal bond shall be deemed acceptance of the declaraƟons made in the bail peƟƟon and all other sƟpulaƟons, terms, and condiƟons of secƟon 438(2) of the Code of Criminal Procedure, 1973, and also of this bail order.

14. The appellant is directed to join the invesƟgaƟon within seven days and also as and when called by the InvesƟgator. The appellant shall be in deemed custody for SecƟon 27 of the Indian Evidence Act. The appellant shall join the invesƟgaƟon as and when called by the InvesƟgaƟng Officer or any Superior Officer; and shall cooperate with the invesƟgaƟon at all further stages as required. In the event of failure to do so, it will be open for the prosecuƟon to seek cancellaƟon of the bail. Whenever the invesƟgaƟon occurs within the police premises, the peƟƟoner shall not be called before 8 AM, let off before 6 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

15. The appellant 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 and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.

16. During the trial's pendency, if the appellant repeats or commits any offence where the sentence prescribed is more than seven years or violates any condiƟon as sƟpulated in this order, it shall always be permissible to the respondent to apply for cancellaƟon of this bail. It shall further be open for any invesƟgaƟng agency to bring it to the noƟce of the Court seized of the subsequent applicaƟon that the accused was earlier cauƟoned not to indulge in criminal acƟviƟes. Otherwise, the bail bonds shall remain in force throughout the trial and aŌer that in SecƟon 437-A of the Cr.P.C., if not canceled due to non-appearance or breach of condiƟons.

17. The condiƟons menƟoned above imposed by this court are to endeavour that the accused does not repeat the offence and to ensure the safety of the witnesses, vicƟm, and their families. In Mohammed Zubair v. State of NCT of Delhi, Writ PeƟƟon (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon’ble Supreme Court holds that “The bail condiƟons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proporƟonal to the purpose of imposing them. The courts while imposing bail condiƟons must balance the liberty of the accused and the necessity of a fair trial. While doing so, condiƟons that would result in the deprivaƟon of rights and liberƟes must be eschewed.”

18. Any Advocate for the appellant and the Officer in whose presence the appellant puts signatures on personal bonds shall explain all condiƟons of this bail order in any language that the appellant understands.

19. If the appellant finds bond amount beyond social and financial reach, it may be brought to the noƟce of this Court for appropriate reducƟon. Further, if the appellant finds bail condiƟon(s) as violaƟng fundamental, human, or other rights, or causing difficulty due to any situaƟon, then for modificaƟon of such term(s), the appellant may file a reasoned applicaƟon before this Court, and aŌer 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 condiƟon.

20. This order does not, in any manner, limit or restrict the rights of the Police or the invesƟgaƟng agency from further invesƟgaƟon as per law.

21. In case the InvesƟgator/Officer-In-Charge of the concerned Police StaƟon arraigns another secƟon of any penal offence in this FIR, and if the new secƟon prescribes maximum sentence which is not greater than the secƟons menƟoned above, then this bail order shall be deemed to have also been passed for the newly added secƟon(s). However, suppose the newly inserted secƟons prescribe a sentence exceeding the maximum sentence prescribed in the secƟons menƟoned above, then, in that case, the InvesƟgator/Officer-In-Charge shall give the appellant noƟce of a minimum of seven days providing an opportunity to avail the remedies available in law.

22. Any observaƟon made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.

23. In return for the protecƟon from incarceraƟon, the Court believes that the accused shall also reciprocate through desirable behavior.

24. There would be no need for a cerƟfied copy of this order for furnishing bonds, and any Advocate for the Appellant can download this order along with case status from the official web page of this Court and aƩest it to be a true copy. In case the aƩesƟng officer wants to verify the authenƟcity, such an officer can also verify its authenƟcity and may download and use the downloaded copy for aƩesƟng bonds.

25. Appeal allowed in aforesaid terms. All pending applicaƟons, if any, stand disposed..

26. It is clarified that in case, the appellant violates any condiƟons then it shall be permissible for the complainant to file an applicaƟon for cancellaƟon of bail and on this ground alone, the bail shall be cancelled.