Himachal Pradesh High Court
Mohammad Arif vs State Of Himachal Pradesh on 4 February, 2021
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.176 of 2021 Reserved on : January 29, 2021.
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Date of Decision: February 4, 2021.
Mohammad Arif ...Petitioner.
Versus
State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 NO
For the petitioner: Mr. Manoj Pathak, Advocate.
For the respondent: Mr. Ajay Vaidya, Senior Additional Advocate General with Mr. Sudhir Bhatnagar, Additional Advocate General, Ms. Seema Sharma, Mr. Narinder Thakur & Mr. Kamal Kant, Dy. Advocate Generals and Mr. Manoj Bagga, Assistant Advocate General, for the State.
THROUGH VIDEO CONFERENCE
FIR No. Dated Police Station Sections
82 of 15.8.2019 Chirgaon, District Shimla, 302, 392, 34 of the
2019 H.P. Indian Penal Code.
Anoop Chitkara, Judge.
The petitioner, incarcerating upon his arrest, for allegedly committing murder of an old woman aged about 70 years, has come up before this Court under Section 439 of CrPC, seeking regular bail, on the grounds that co-accused was granted bail by this Court and on parity he is also entitled to the same.
2. A perusal of the petition reveals that the petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a three Judges 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 04/02/2021 20:16:31 :::HCHP 2Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 &
15), wherein the Full bench holds 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.
3. The bail petition is silent about criminal history, however, Mr. Manoj Pathak, Learned Counsel for the bail petitioner states on instructions that the petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed was more than three years. The status report also does not mention any criminal past of the accused.
4. Briefly, the allegations against the petitioner are that on 15.8.2019, complainant Smt. Surjani Devi, informed the police that her mother Smt. Rampati aged about 70 years, resided alone in Chirgaon. She stated that her younger sister informed her that Phone of her mother is responding with message 'Phone Switched off'. On this, at around 5:15 p.m., she went to her room to inquire about her well being. The door of her room was bolted from outside and sound of television was audible from inside.
On opening the door, she found her mother to have been strangulated. She also noticed that her ornaments were missing. On the basis of this information, police recorded her statement under Section 161 Cr.P.C. leading to registration of the aforesaid FIR.
5. After that on 16th August, 2019, the police sent the body of Rampati for postmortem to IGMC, Shimla. Vide postmortem report No.2/2019, the Forensic Medicine Expert opined that the cause of death was asphyxia due to strangulation.
This report was given under the seal and signature of Dr. Peeyush Kapila, Associate Professor at IGMC, Shimla.
::: Downloaded on - 04/02/2021 20:16:31 :::HCHP 36. The police swung into action and recorded the statement of one occupant of the building, namely Suraj, a young boy of 19 years. He stated that at 10:30 a.m., .
three young persons had visited the building and had demanded keys of the room of Mushtaq Ahmad from Rampati. He stated that out of those three persons, two were well known to him. He named Mohd. Arif, R/o Bilaspur (petitioner herein) and second one Imran Khan, R/o Sundernagar, District Mandi. He stated that he did not know the name of 3rd person, but he could recognize him. After that, they had entered into arguments with Rampati and were demanding keys, however, Rampati had refused to handover keys to them. He further stated that at 12:00 noon or 1:00 p.m., the sound of television was audible from the room of Rampati. At 5:30 p.m., he came to know from her daughter that Rampati had been murdered. This young boy, Suraj stated that he knows the two persons very well and he could recognize the 3rd persons as well.
7. After the police got CCTV footage and showed the photographs to Suraj he identified the 3rd person. Subsequently, the police splashed the photographs to entire area and consequently at Ghanahatti, the police detained these three persons from HRTC bus which was en- routed from Sarahan to Chintpuri. A Daily Diary No.6 dated 16.8.2019, was entered at 2:48 a.m.
8. After that, accused Arif Mohd. made a disclosure statement under Section 27 of the Evidence Act, which led to recovery of stolen ornaments which he had concealed under the seat of the HRTC bus.
9. The accused Mohit Khan, vide statement dated 19.8.2019, showed to the police the building of Rampati and the place where he was standing at the time of alleged incident. He also disclosed to the police that Mohd. Arif and Imran Khan had ::: Downloaded on - 04/02/2021 20:16:31 :::HCHP 4 entered into the room of Rampati and had closed the door. After sometime, both of them came out and bolted the door and came down.
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10. Ld. Counsel for the petitioner contends that the incarceration before the proof of guilt would cause grave injustice to the petitioner and family.
11. On the contrary, the State contends that the Police have collected sufficient evidence against the bail petitioner and the co-accused. Another argument on behalf of the State is that the crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to society.
REASONING:
12. The reasoning, while granting bail to the co-accused in Cr.MP(M) No.1975 of 2019, titled Mohit Khan vs. State, is no manner applicable to the present petitioner, against whom there is ample evidence. Further reference to the petition also reveal that there are no grounds on which he is entitled to bail. As such, he has failed to make out a case for bail.
13. Ld. Counsel for the petitioner referred to certain statements and memos from the police report, prepared under section 173(2) CrPC, copies of which the accused had duly received in compliance to S. 207 CrPC. However, the documents which the Ld. Counsel referred were neither filed with the petition, nor its copies have been supplied to the Court and the State. Thus, the Court cannot base any finding on a document which is in the Counsel's brief and not on the Court's file.
14. Counsel for the petitioner has also made several other arguments. Still, given that this Court is not inclined to grant bail, on the reasons mentioned above, discussion of the same will be an exercise in futility. Any detailed analysis of the evidence may prejudice the case of the prosecution or the accused.
::: Downloaded on - 04/02/2021 20:16:31 :::HCHP 515. Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail. The petition is dismissed with liberty .
to file a new bail application.
16. 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.
The petition is dismissed.
Anoop Chitkara, Vacation Judge.
February 4, 2021 (ks). r ::: Downloaded on - 04/02/2021 20:16:31 :::HCHP