The duty of the court to balance individual's right to personal freedom and the right of police investigation, and the imposition of restrictive conditions to ensure uninterrupted and unhampered investigation.

JUDGMENT

Anoop Chitkara, J. -

FIR No.

Dated

Police Station

Sections

385

15.09.2022

Sadar Tauru, Haryana

379, 506 IPC

1. The petitioners apprehending arrest in the FIR captioned above, have come up before this Court under Section 438 Cr.P.C. seeking anticipatory bail.

2. In paragraph 7 of the bail application, the accused declares the following criminal antecedents:

Sr. No.

FIR No.

Dated

Offences

Police Station

1.

413

31.12.2021

379 IPC, 3/13(1), 8/13(3) HGS and GS Act

Sadar Tauru

?3. Lawyers have abstained from work.

REASONING:

4. In Maulana Mohd Amir Rashadi v. State of U.P., (2012) 3 SCC 382, Hon'ble Supreme Court holds,

[10] It is not in dispute and highlighted that the second respondent is a sitting Member of Parliament facing several criminal cases. It is also not in dispute that most of the cases ended in acquittal for want of proper witnesses or pending trial. As observed by the High Court, merely on the basis of criminal antecedents, the claim of the second respondent cannot be rejected. In other words, it is the duty of the Court to find out the role of the accused in the case in which he has been charged and other circumstances such as possibility of fleeing away from the jurisdiction of the Court etc.

5. In Paramjeet Singh v. State of Punjab, CRM-M 50243 of 2021, this court observed, While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with reasonableness because arbitrariness is the antithesis of law. The criminal history must be of cases where the accused was convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused. In reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge, or when Courts quashed the FIR; the prosecution stands withdrawn, or prosecution filed a closure report; cannot be included. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of a playing field are marshy, and graver the criminal history, slushier the puddles.

6. The allegations against the petitioners are of theft and slaughtering of cow .Given the nature of allegations and other factors peculiar to this case, it may be appropriate to afford the petitioners a final opportunity to course-correct. Thus, the previous criminal history of the petitioners is not being considered strictly at this stage as a factor for denying bail. Furthermore, a prima facie perusal of paragraph 7 of the bail petition reveals sufficient grounds for granting bail.

7. In the present case, the maximum sentence imposable for the offences mentioned in FIR does not exceed seven years. Thus, directions passed in Arnesh Kumar v. State of Bihar, (2014) 8 SCC 273, (Para 13), apply to this petition, wherein Hon'ble Supreme Court directed all the State Governments to instruct its police officers not to arrest the accused automatically when the offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

8. 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. In Sumit Mehta v. State of N.C.T. of Delhi, (2013)15 SCC 570, Para 11, Supreme Court holds that while exercising power Under Section 438 of the Code, the Court is duty-bound to strike a balance between the individual's right to personal freedom and the right of investigation of the police. While exercising utmost restraint, the Court can impose conditions countenancing its object as permissible under the law to ensure an uninterrupted and unhampered investigati