Himachal Pradesh High Court
Abdul Rehman vs State Of Himachal Pradesh on 15 June, 2018
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CrMP(M) No. 655 of 2018 .
Reserved on: 13.06.2018
Decided on: 15.06.2018
Abdul Rehman ...Petitioner.
Versus
State of Himachal Pradesh
Coram
r to ...Respondent.
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting? Yes.
For the petitioner: Mr. N.S. Chandel and Mr. Sunil Mohan Goel, Advocates.
For the respondent: Mr. Shiv Pal Manhans and Ms. Rameeta Kumari, Additional Advocate General, with Mr. Raju Ram Rahi, Deputy Advocate General.
ASI Hardev Singh, Police Station Majra, District Sirmaur, present in person.
Vivek Singh Thakur, Judge.
Petitioner has filed instant petition under Section 439 of the Code of Criminal Procedure (hereinafter ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 2 referred to as 'CrPC') for grant of regular bail in case FIR No. 10 of 2017, dated 14th November, 2017, registered at .
Police Station Majra, District Sirmaur, H.P., under Sections 364, 302, 120B, 201 read with Section 34 of Indian Penal Code (hereinafter referred to as 'IPC').
2. I have heard learned counsel for the petitioner as well as learned Deputy Advocate General for the respondentState and have also gone through the status reports filed on behalf of the respondentState.
3. Prosecution case, in brief, as emerges from the material on record, is that 20 years old Mumtaz (daughter of complainantWajid Ali) did not return back on 11 th November, 2017 after leaving the house about 10.00 a.m. for visiting Paonta Sahib to collect her marksheet from College whereupon she was searched everywhere in relation, but, on finding no clue, her missing report was lodged by the complainant in Police Station Majra on 13th November, 2017. During search of Mumtaz, police found a clue that she was last seen together with one Sharik Rehman on 11 th ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 3 November, 2017 at Paonta Sahib whereafter said Sharik Rehman was interrogated, who informed the police that .
Mumtaz had asked him on his mobile phone from an unknown number to come to Paonta Sahib whereupon he had visited Paonta Sahib to meet her, but, at that time Mumtaz was very angry and had told him that she was going to adopt her own way and he should also mind his own business. Thereafter, when the police visited house of Sharik Rehman on 15th November, 2017 for further investigation, he had tried to commit suicide by inflicting an injury in his stomach with some sharp edged weapon, which led to registration of FIR No. 11 of 2017, dated 15th November, 2017, against him under Sections 342, 186, 506 and 309 IPC in Police Station Majra. Sharik Rehman was admitted in Aggarwal Hospital Jagadhari/Yamunanagar.
4. On 17th November, 2017, petitionerAbdul Rehman, who is real uncle of Sharik Rehman, had interfered in and obstructed the investigation being carried out by the police and forensic team by abusing and threatening them ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 4 when they visited the house of Sharik Rehman on 17 th November, 2017, whereupon ASI Subhash Chand lodged a .
report in DDR under Section 186 and 189 IPC.
5. After obtaining the call details and tower location of mobile number of Sharik Rehman, his location on 11th November, 2017 was found at Puruwala, Moginand, Badripur, Gondpur in the morning and at Badwas, Baldwa (Kamrau) during day time and after 1.30 p.m., again at Badripur and Puruwala area. After receiving this information, search for Mumtaz was started in these areas.
On 25th November, 2017, a foul smell was sensed by the police party at a big curve between Sataun and Hevna Temple whereupon search was made below the road and at a distance of 20 feet below the road, a red coloured lady plastic shoe was found and on further search 30 feet below the road, putrificated dead body of a woman was found. The said dead body, on the basis of wearings of the deceased, was identified by her cousin Riyasat Ali and Uncle Shamim Ali as at the time of leaving her house on 11 th November, 2017, ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 5 Mumtaz was wearing these apparels and her red plastic shoe was also identified by her Aunt Mehazbeen.
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6. Thereafter, statements of witnesses were recorded, who stated that Sharik Rehman in conspiracy with Abdul Rehman (petitioner), by using vehicle of petitioner, bearing registration No. HP17B5944, had thrown Mumtaz from the cliff with intention to kill her as on 11 th November, 2017, when Sharik Rehman came back to Puruwala in the said car, he had washed the said vehicle near house of his aunt (bua) whereupon petitionerAbdul Rehman was arrested on 26th November, 2017. During police remand, he produced his car bearing registration No. HP17B5944, alongwith key and documents and informed that his nephew (Sharik Rehman) had borrowed his car on 11th November, 2017. After checking the footage of 11 th November, 2017, of CCTV cameras installed in the area, the said vehicle was found at 10.24 a.m. at Taruwala going towards Sataun and at Batapul, it was found coming towards Puruwala at 2.03 p.m. The call details of Sharik Rehman and one Sahil Khan ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 6 (coaccused) disclosed their inter se talks and their presence in the one and the same area, whereupon Sahil Khan was .
interrogated, who disclosed that on 11th November, 2017, he had visited towards Kamrau in the said car with Sharik and Mumtaz was also with them and during return from Kamrau, Sharik had stopped the car near a curve and asked him to leave the vehicle to facilitate him to have personal talk with Mumtaz whereupon he had deboarded the vehicle and gone towards back side and started talking with his girlfriend. On his return, he saw Sharik dragging Mumtaz outside the car and throwing from the cliff. Thereafter, Section 302 read with Section 34 IPC was added in the case and on 28th November, 2017, Sahil Khan was arrested.
7. On 29th November, 2017, Director, SFSL, visited the spot alongwith his team, inspected the vehicle involved in the incident and had taken in possession hair and sand from the vehicle. Seat cover and foot mat of rear seats were also taken in possession. On 1st December, 2017, Sahil Khan made a statement under Section 27 of the Evidence Act ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 7 following the identification of the spot where Mumtaz was killed by Sharik Rehman by throttling and throwing from .
the cliff. Sharik Rehman was arrested by the police after his discharge from the hospital on 4th December, 2017, who had also made a statement under Section 27 of Evidence Act followed by the identification of the spot. He also identified the spot from where he had thrown the purse and one shoe of deceased below the road, but, the said purse and shoe could not be recovered despite searching the same on the said spot, which resulted into addition of Section 201 IPC in the case.
8. During investigation, viscera and clothes of Mumtaz, CCTV footage, mobiles of Sharik Rehman and Sahil Khan and the material recovered from the vehicle and exhibits of accusedSharik Rehman were sent for chemical analysis to SFSL Junga, report whereof has been received now and as per status report, supplementary challan in this regard is yet to be produced in the Court whereas challan ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 8 presented in the Court is under consideration of learned Additional Sessions Judge, Sirmaur District at Nahan.
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9. Petitioner had filed an application under Section 439 CrPC before Additional Sessions Judge, Sirmaur District at Nahan, which was dismissed on 3rd January, 2018 whereafter the petitioner had approached this Court by filing CrMP (M) No. 41 of 2018, but, the same was withdrawn on the ground that application filed by the petitioner before learned Additional Sessions Judge was dismissed primarily on the ground that investigation was still going on at that time and as challan had been filed by the time petition (CrMP (M) No. 41 of 2018) was preferred in this Court, the said petition was permitted to be withdrawn with liberty to file fresh application before the learned trial Court. Thereafter, petitioner preferred a bail application before learned Additional Sessions Judge, which was dismissed on 3rd April, 2018 constraining the petitioner to file present petition in this Court.
::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 910. It is contended on behalf of the State that Sharik Rehman is residing with the petitionerAbdul Rehman and .
is under his influence as there is no other person to guide him in his family and petitionerAbdul Rehman has permitted his vehicle for commission of offence, which was washed twice by Sharik Rehman after the incident, but petitionerAbdul Rehman did not inform the police about this abnormal suspicious activity nor made any inquiry about the fact from Sharik Rehman. Also, petitionerAbdul Rehman had obstructed the police investigation and tried to mislead the course of investigation and had the petitioner been not involved in conspiracy with Sharik Rehman, he would have never obstructed the police investigation and definitely, would have informed the police about the conduct of Sharik Rehman, particularly, about the attempts made by Sharik Rehman to destroy the physical evidence. It has therefore been contended that there is evidence against the petitioner so as to establish his conspiracy with main accused and for his active efforts to derail the investigation, ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 10 he is not entitled for bail, as being an influential person, he can hamper the investigation and tamper with the evidence.
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11. Learned counsel for the petitioner submits that even in the report of SFSL, involvement of the vehicle of petitioner is not established, the petitioner has been arrested on the basis of suspicion only and there is no remote evidence on involvement of the petitioner in the commission of alleged offence, much less, the concrete evidence and even if the statements of witnesses recorded by the police are taken as it is, there is no iota of evidence of involvement of petitionerAbdul Rehman in commission of alleged offence. It has further been submitted that there was no occasion or motive for petitionerAbdul Rehman to hatch the conspiracy to murder Mumtaz.
12. Principles with regard to grant of bail are well settled, which have been reiterated by the apex Court in numerous pronouncements. The apex Court in case titled as Gurcharan Singh versus State (Delhi Administration), ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 11 reported in (1978) 1 Supreme Court Cases 118, has laid the following criteria for grant of bail:
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"22. In other nonbailable cases the Court will exercise its judicial discretion in favour of granting bail subject to subsection (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437 (1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.
23. ..............
24. Section 439 (1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437 (1) there is no ban imposed under Section 439 (1) CrPC against granting of bail by the ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 12 High Court or the Court of session to persons accused of an offence punishable with death or imprisonment for life. It is, .
however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so the High Court or the Court of session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439 (1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437 (1) and Section 439 (1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence, of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out."
13. The apex Court in case titled as Prasanta Kumar Sarkar versus Ashis Chatterjee and another, reported in (2010) 14 Supreme Court Cases 496, has laid ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 13 down the following principles to be kept in mind, while deciding petition for bail:
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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
14. Thereafter, the apex Court in a detailed judgment in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, reported in (2011) 1 Supreme Court Cases 694, relying upon pronouncement of the Constitution Bench in Gurbaksh Singh Sibbia ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 14 versus State of Punjab, reported in (1980) 2 Supreme Court Cases 565, laid down the following parameters for .
grant of bail:
(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
(ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in r respect of any cognizable offence;
(iii) The possibility of the applicant to flee from justice;
(iv) The possibility of the accused's likelihood to repeat similar or the other offences;
(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;
(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 15 sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over .
implication in the cases is a matter of common knowledge and concern;
(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
15. Following observations made by the apex Court in Sanjay Chandra versus Central Bureau of Investigation, reported in (2012) 1 Supreme Court Cases 40, may also be relevant to be reproduced herein:
::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 16"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the .
appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty.
22. From the earliest times, it was appreciated that detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, `necessity' is the operative test. In this country, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances.
23. Apart from the question of prevention being the object of a refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 17 substantial punitive content and it would be improper for any Court to refuse bail as a mark of disapproval of former .
conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him a taste of imprisonment as a lesson.
40. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required."
16. In a recent pronouncement in case titled as Dataram Singh versus State of Uttar Pradesh and another, reported in (2018) 3 Supreme Court Cases 22, the apex Court, after considering its previous pronouncements, has held as under:
::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 18"2. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the .
exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.
3. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a firsttime offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 19 factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal .
Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.
4. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in Inhuman Conditions in 1382 Prison, In re (2017) 10 SCC 658 : (2018) 1 SCC (Cri) 90.
5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 : (2017) 13 Scale 609, going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465, in which it is observed that it was held way back in Nagendra Nath Chakravarti, In re 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476, that bail is not to be withheld as a punishment. Reference was also made to Emperor v. H.L. Hutchinso, 1931 SCC OnLine All 14 : AIR 1931 All ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 20 356, wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore ageold .
and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days.
6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory."
17. In view of aforesaid, grant of bail to the petitioner is to be considered within the parameters laid down by the apex Court, as referred hereinabove.
18. In present case, as per submission of learned Deputy Advocate General, accusation against the petitioner is based upon the statements of witnessesWazid Ali (complainant), Imran, Shamim Ali and Riyasat Ali and also on the basis of the fact that petitioner had permitted the main accused to use his vehicle, which has been found involved in commission of offence and further that petitioner ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 21 had not informed the police about the suspicious activity of the main accused, rather, tried to hamper the investigation.
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19. Perusal of statement of aforesaid witnesses recorded under Section 161 CrPC discloses that only on the basis of user of vehicle of petitioner by main accused and washing thereof twice after the incident, these witnesses, in their statements, have suspected the conspiracy of petitioner in commission of offence by further stating that Sharik Rehman used to tease Mumtaz and he had caused to break the engagement of Mumtaz and thus, Sharik Rehman had killed Mumtaz with the help of his uncle Abdul Rehman (petitioner).
20. During investigation, police has also obtained call details as well as location of mobile phones of accused.
From the call details referred before this Court, the fact that deceased Mumtaz, through phone of her friend Nisha, had conversation with Sharik Rehman on 11 th November, 2017, during 9.43 a.m. to 9.46 a.m. As per statement of Kumari Nisha, recorded by the police, on 11th November, 2017, at ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 22 about 9.30/9.45 a.m., when she was waiting for bus for Paonta at Puruwala Bus Stop, Mumtaz, who was also there, .
had informed her that it was her holiday and she was visiting Paonta and at that time, Mumtaz had made one or two calls from her mobile and at that time, Sharik Rehman had come from Paonta Sahib in a tempo and made an eye signal to Mumtaz. In the meantime, bus came and she and Mumtaz went to Paonta in the said bus. She had deboarded the Bus at Bangan Chowk whereas Mumtaz had proceeded ahead in the bus.
21. Combined reading of call details and the statement of Kumari Nisha depicts that there was conversation between Mumtaz and Sharik Rehman and Sahil Khan, but, during these calls, any talk between Sharik Rehman with the petitioner has not been pointed out.
22. Further, it is also prosecution case that Mumtaz was taken in the vehicle by Sharik Rehman and Sahil Khan.
So far as the conspiracy on the part of petitioner to facilitate or instigate Sharik Rehman and Sahil Khan to commit ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 23 offence is concerned, the same is yet to be established during the trial and is a matter of consideration of the trial Court.
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One of the basis, as of now, to implicate the petitioner is to permit Sharik Rehman and Sahil Khan to take his car.
Knowledge of the purpose for which his vehicle was taken by Sharik Rehman is also a fact yet to be established in trial.
Prima facie, it appears from the record that Sharik Rehman is the main culprit in committing the murder and Sahil Khan is his accomplice. Mumtaz and Sharik Rehman appears to have intimacy with each other and Sahil Khan was also their common friend and knowledge of the petitioner in this regard is yet to be established, but, even if it is considered that he was having knowledge of such intimacy, on the basis of material placed before this Court, only such knowledge cannot be made basis for rejection of bail petition of petitioner. What happened between Mumtaz and Sharik Rehman is in knowledge of either Sharik Rehman or Sahil Khan. There cannot be presumption of ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 24 knowledge of everything to the petitioner. Such knowledge and conspiracy, if any, is yet to be established on record.
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23. It is noticeable that DDR has been recorded against the petitioner for interfering and obstructing the investigation, for which the respondentState/Investigating Agency is free to take appropriate action, including registration of case, if made out. Such act on the part of petitioner definitely warrants an action against him and may be a reason to suspect that he has connived with Sharik Rehman to save him, but, the omission on the part of petitioner to make an endeavour to help Sharik Rehman after commission of offence does not mean that he had conspired for commission of offence with main accused. Such an act can always be taken care of by the police by registering a case against him.
24. From the material placed before this Court, it is apparent that omission and commission on the part of petitioner cannot be equated with the act of main accused Sharik Rehman and Sahil Khan causing murder of Mumtaz.
::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 25Material on record may be a pointer suspecting the involvement of petitioner, but, at this stage, such suspicion, .
which is yet to be established, cannot be a reason to deny the bail.
25. As of now, investigation is complete and challan has been presented in the Court. Therefore, there will be no question of hampering or obstructing the investigation in case petitioner is released on bail. Further, FSL report has also been received and has been proposed to be filed in the Court with supplementary challan in the near future in which also, the petitioner has no role to play.
26. It is also noticeable that Mumtaz had disappeared on 11th November, 2017 whereas petitioner was arrested on 26th November, 2017 and the witnesses, whose statements have been made basis for accusation against petitioner, had deposed before the police before his arrest.
Therefore, probability of terrorizing or dissuading the witnesses from telling the truth is also not there. Moreover, in any case, if the petitioner involves himself in any such ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 26 act, then, the Court can be approached under Section 439 (2) CrPC for cancellation of his bail.
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27. The petitioner is a Doctor by profession and having roots in the society and has not fled during investigation of the case before his arrest and, therefore, there is no possibility of his fleeing, if enlarged on bail.
28. According to prosecution, a hair was recovered from the car used for commission of offence, but, as per SFL Report, the same has not matched with the hair of Sharik Rehman. For the reasons best known to the Investigating Agency/Officer, the hair of other persons, i.e. Sahil Khan, Abdul Rehman (petitioner) or deceasedMumtaz have not been sent for comparison with the said hair. It is also not known as to whether hair of deceased Mumtaz have been preserved for such comparison or not and as to whether it is possible now to extract her hair from the graveyard. Be that as it may, it is for the Investigating Agency/Officer to decide the course of investigation.
::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 2729. Considering the entire material placed before this Court and the principles propounded by the apex Court .
referred (supra), petitioner is ordered to be released on bail in case FIR No. 10 of 2017, dated 14 th November, 2017, registered at Police Station Majra, District Sirmaur, H.P., if not required in any other case, subject to following conditions:
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(i) The petitioner shall furnish bail bonds in the sum of ₹ one lac with one surety in the like amount to the satisfaction of Chief Judicial Magistrate, Sirmaur at Nahan, District Sirmaur;
(ii) The petitioner shall make himself available to the police or any other investigating agency or Court in the present case as and when required;
(iii) He shall not hamper the investigation nor tamper with the prosecution evidence of the case in any manner whatsoever;
(iv) He shall not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer;
(v) He shall not leave the country without prior permission of the Court;
::: Downloaded on - 15/06/2018 23:03:18 :::HCHP 28(vi) He shall not misuse the liberty in any manner; and .
(vi) Any breach in the conditions imposed upon him would entail cancellation of his bail.
30. Observations made in this petition hereinbefore shall not have any bearing on the merits of the case and the trial Court shall consider the material placed before it, in accordance with law, on its own merit without being influenced by any observation of this Court.
31. Petition stands disposed of in aforesaid terms.
Copy dasti.
(Vivek Singh Thakur) Judge June 15, 2018 (rajni) ::: Downloaded on - 15/06/2018 23:03:18 :::HCHP