Vicky and Another v. State of Punjab

ANOOP CHITKARA, J. FIR No. Dated Police Sta1on Sec1ons 234 07.11.2024 City-1, Abohar, 311, 140(1), 115(2), 190, 191(3) of BNS, Dis,. Fazilka 2023 (Secton 117 (2) of BNS added vide order dated 15.01.2025)

¶1The pettoners apprehending arrest in the FIR captoned above have come up before this Court under Secton 482 of Bharatya Nagarik Suraksha Sanhita, 2023, [BNSS], seeking antcipatory bail.

¶2In paragraph 16 of the bail petton, the accused declare that pettoner No.1 has the following antecedents and pettoner No.2 is not involved in any other case. Sr. No. FIR No. Dated Offenses Police Sta1on

¶1244 21.11.2024 311 (6), 324(4), 351(2), 191(3) of -- BNS (in which ma7er stands compromised on 17.12.2024)

¶3The facts of the case are being taken from the translated copy of FIR annexed with bail petton as Annexure P-1, which reads as follows: "Statement of Gurwinder Singh son of Jagsir Singh son of Billu Singh Resident of Street No. 02 Jammu Bast Abohar Age about 23 years Mobile No.92562-xxxxx stated that I am a resident of the said address and working as a palledari and also doing studies. On 04/11/2021 at around 1:00/1:30 PM I was at Anaj Mandi Abohar, shied No. 02 and was loading paddy in the truck of Shant alongwith me Nambardar Manga Singh and order/judgment. 1 some other daily wagers were also loading paddy then four motorcycles came upon which happy son of Rinku, Vicky son Kaka Dove armed with Kapa, Vicky son of Roma armed with Rod, Heera Son of Kaka Taylor armed with Kapa, Ghugi Son of Shera armed with Wooden Stck Resident of Jammu Bast Abohar along with Jhot alias Mot son of unknown armed with Kirpan resident of Seed Farm Pakka and 4/5 other unknown persons came there. I was standing on top of the truck then Vicky son Kaka got on top of the truck, who as soon as he came hit my le; leg many tmes with Datar which was hit at li<le lower to the knee. Seeing our fight, the labour a<ached to me ran away from the spot. Then Vicky forced me down to the truck and then all of them started hi>ng me with their weapons. Happy gave Kape blow on le; knee, Jhot hit Kirpan on the back side of le; knee, Vicky son Roma hit me on right shoulder with iron rod, Hira hit me with his Kapa but I put my le; hand forward to save which hit on my fingers. When I started to get up, then Ghugi hit me on the back with the stck, then the unknown youth also hit my legs, Happy hit me with kapa on my le; thigh, Vicky son of Kaka again hit me with Da<ar on my right leg. Jonty gave kirpan blow on my le; hand which got hit on my elbow, then all these men picked me up and took me to Dharamshala Kikra near Jammu Bast on motorcycle and ted my leg. Children and ladies who were roaming nearby saw all this and started making noise, all these people upon seeing the gathering of people, ran away from the spot alongwith their weapons and motorcycles and while going, Vicky son of Kaka took out my mobile brand OPPO Silver with sim number 87270-xxxxx and Rs. 2700/- from my lower pocket and also pulled the silver chain around my neck and said that today you escaped. If again you were caught then you will be killed. Then my brother Vinod Singh picked me up and arranged a ride and admi<ed me to Civil Hospital Abohar. The reason of fight is that some tme ago, I and Vicky son of Kaka had Tu-Tu, Me-Me, which was made compromised by respectable persons. But Vicky had a grudge and beat me up. Legal acton should be taken against them."

¶4The pettoners' counsel prays for bail by imposing any stringent conditons and contends that pre-trial incarceraton would cause an irreversible injustce to the pettoners and their family.

¶5The State's counsel opposes bail and refers to the status report.

¶6It would be appropriate to refer to the following portons of the status report, order/judgment. 2 which read as follows: "4. Role of the pe##oner – That there are specific allegatons against the pettoner/accused. The pettoner/accused was armed with wooden sota. The pettoner/accused gave sota blow on the back of the complainant. The injury No.9 caused with sota is a<ributed to the pettoner No.1. The pettoner actvely partcipated in the commission of crime. The pettoner and co-accused caused injuries as many as ten injuries to the complainant with intenton to kill him (including three grievous injuries). Evidence against the pe##oner -There is sufficient evidence against the pettoner. The pettoner no. 2 is armed with kappa. The injury No.4 caused with kappa, which is grievous in nature and is a<ributed to the pettoner No.2. Evidence against the pe##oners: The pettoner actvely partcipated in the commission of crime. There is sufficient evidence against the pettoners." REASONING:

¶7Perusal of the FIR prima facie does not indicate that the assault was made to rob or snatch phone but it was to cause beatng. Given above, motve assume importance which is missing for dacoity as partes knew each other. It creates a doubt, coupled with the nature of injuries despite offence being under Secton 311 BNS i.e. robbery or decoity with a,empt to cause death or grievous hurt, but injuries did not point towards such a,empt.

¶8Pre-trial incarceraton should not be a replica of post-convicton sentencing. The evidence might be prima facie sufficient to launch prosecuton or to frame charges, but this Court is not considering the evidence at that stage but is analyzing it for the stage of antcipatory bail. An analysis of the above does not justfy custodial interrogaton or pre-trial incarceraton.

¶9Given the above, the penal provisions invoked coupled with the primafacie analysis of the nature of allegatons and the other factors peculiar to this case, there would be no justfiability for custodial interrogaton or the pre-trial incarceraton at this stage.

¶10Without commentng on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentoned above, the pettoners make a case order/judgment. 3 CONDITIONS: Given above, provided the pettoners are not required in any other case, the pettoners shall be released on bail in the FIR captoned above subject to furnishing bonds to the satsfacton of the Arrestng Officer, and if the ma,er is before a Court, then the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before acceptng the surety, the concerned Officer/Court must be satsfied that if the accused fails to appear, such surety can produce the accused.

¶11While furnishing a personal bond, the pettoners shall menton the following personal identficaton details:

¶1AADHAR number

¶2Passport number (If available) and when the a,estng officer/court considers it appropriate or considers the accused a flight risk.

¶3Mobile number (If available)

¶4E-Mail id (If available)

¶12This order is subject to the pettoners' complying with the following terms. The pettoners shall abide by all statutory bond conditons and appear before the concerned Court(s) on all dates. The pettoners shall not tamper with the evidence, influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any witnesses, Police officials, or any other person acquainted with the facts and circumstances of the case or dissuade them from disclosing such facts to the Police or the Court.

¶13The pettoners are directed to join the investgaton within seven days of uploading this order on the official webpage of the High Court of Punjab and Haryana and as and when called by the Investgator. The pettoners shall be in deemed custody for Secton 27 of the Indian Evidence Act, 1872/ Secton 23 of BSA, 2023. The pettoners shall join the investgaton as and when called by the Investgatng Officer or any Superior Officer and shall cooperate with the investgaton at all further stages as required. In the event of failure to do so, the prosecuton will be open to seeking cancellaton of the bail. During the investgaton, the pettoner shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

¶14Given the nature of the allegatons and the other circumstances peculiar to this case, the pettoners shall not enter the property, workplace, and residence of the victm untl the statements of all non-official and informal witnesses in the trial are recorded. This Court is imposing this conditon to rule out any a,empt by the accused to incapacitate, influence, or cause any discomfort to the victm. Reference be made to Vikram Singh v Central Bureau of Investgaton, 2018 All SCR (Crl.) 458); and Aparna Bha, v. The State of Madhya Pradesh, 2021:INSC:192, 2021 SCC Online SC 230. order/judgment. 4

¶15Given the background of allegatons against the pettoners, it becomes paramount to protect the members of society, and incapacitatng the accused would be one of the primary optons untl the filing of the closure report or discharge, or acqui,al. Consequently, it would be appropriate to restrict the possession of firearms. [This restricton is being imposed based on the preponderance of the evidence of probability and not of evidence of certainty, i.e., beyond a reasonable doubt; and as such, it is not to be construed as an intermediate sancton]. Given the nature of the allegatons and the other circumstances peculiar to this case, the pettoners shall surrender all weapons, firearms, and ammuniton, if any, along with the arms license to the concerned authority within fiLeen days and inform the Investgator of the compliance. However, subject to the Indian Arms Act, 1959, the pettoners shall be enttled to renew and reclaim them in case of acqui,al in this case, provided otherwise permissible under the concerned rules. Restrictng firearms would instll confidence in the victm(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeatng the offense.

¶16The conditons mentoned above imposed by this court are to endeavor to reform and ensure the accused does not repeat the offense. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Petton (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 conditons imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportonal to the purpose of imposing them. The courts, while imposing bail conditons must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditons that would result in the deprivaton of rights and libertes must be eschewed."

¶17In case the Investgator/Officer-In-Charge of the concerned Police Staton arraigns another secton of any penal offense in this FIR, and if the new secton prescribes a maximum sentence that is not greater than the sectons mentoned above, then this bail order shall be deemed to have also been passed for the newly added secton(s). However, suppose the newly inserted sectons prescribe a sentence exceeding the maximum sentence prescribed in the sectons mentoned above; then, in that case, the Investgator/Officer-In-Charge shall give the pettoners notce of a minimum of seven days, providing an opportunity to avail the remedies available in law.

¶18It is clarified that if the pettoners violate any bail conditon, the State and/or the victm may file an applicaton for bail cancellaton before the trial court, which shall be competent to cancel the bail or add more conditons. Furthermore, if the pettoners move for deleton or diluton of any bail conditons, the trial court is empowered to do order/judgment. 5 so.

¶19This bail is condi#onal, and the founda#onal condi#on is that if the pe##oners indulge in any non-bailable offense, the State may file an applica#on for cancella#on of this bail before the Sessions Court, which shall have the liberty to cancel this bail.

¶20The concerned trial court is authorized to delete, modify, or relax any of the above conditons and shall be competent to do so in accordance with the law.

¶21Any observaton made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments.

¶22A certfied copy of this order would not be needed for furnishing bonds, and any Advocate for the Pettoner can download this order along with case status from the official web page of this Court and a,est it to be a true copy. If the a,estng officer wants to verify its authentcity, such an officer can also verify its authentcity and may download and use the downloaded copy for a,estng bonds.

¶23Pe11on allowed in terms mentoned above. All pending applicatons, if any, stand disposed of. (ANOOP CHITKARA) JUDGE

28.02.2025 Jyot-II Whether reportable: No. order/judgment. 6

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Reserved on: 17.02.2025 Pronounced on: 28.02.2025 Vicky and another ...Pettoners Versus State of Punjab …Respondent CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA Present: Mr. Piyush Seta, Advocate, for the pettoners. Mr. Sukhdev Singh, AAG, Punjab. ****