Himachal Pradesh High Court
Hem Singh @ Bhimu vs State Of Himachal Pradesh on 7 November, 2019
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P.(M) No. 1893 of 2019
Decided on:07.11.2019
______________________________________________________
.
Hem Singh @ Bhimu ....Petitioner
Versus
State of Himachal Pradesh ...Respondent
______________________________________________________
Coram:
The Hon'ble Ms. Justice Jyotsna Rewal Dua, Judge.
Whether approved for reporting?1 Yes.
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For the Petitioner : Mr. Naresh Verma, Advocate.
For the Respondent : Mr. Anil Jaswal and Ms. Rameeta
Rahi, Additional Advocate
Generals.
SI Nokh Ram, S/C Jeeven Singh &
Hem Singh, Police Station Balh,
District Mandi, present along with
record.
______________________________________________________
Jyotsna Rewal Dua, J.(oral)
Petitioner is praying for grant of regular bail under Section 439 of the Code of Criminal Procedure in FIR No. 232 of 2019 dated 19.08.2019, registered at Police Station Balh, District Mandi under Sections 498-A, 306 read with Section 34 of the Indian Penal Code.
2. I have heard Sh. Naresh Verma, learned counsel for the petitioner, Sh. Anil Jaswal and Ms. Rameeta Rahi, learned Additional Advocate Generals for the State. I have also gone through the status report filed by SI Nokh Ram as well as record of the case relevant for adjudication of this petition.
1Whether reports of Local Papers may be allowed to see the judgment?
::: Downloaded on - 07/11/2019 20:26:07 :::HCHP 23. The status report/record, reveals that:-
Complaint was filed by Smt. Narvada Devi, mother of .
deceased Rekha on 19.08.2019 with the police to the effect that her youngest daughter Ms. Rekha got married to Sh. Jeevan Singh, s/o Sh.
Hem Singh, present bail petitioner, resident of Village and Post Office Sakroha, Tehsil Balh, District Mandi, H.P., about 10 years ago; however, 4-5 years after the marriage, her husband and her-in-laws started torturing her on account of dowry; her daughter was given beatings; she and her children were not even r given any amount for their sustenance; her daughter in order to survive started working in a shop, but that was also objected by her husband; on account of torture meted out to her daughter, she consumed poison on 15.08.2019; she (Narvada Devi) was not informed about this fact by her daughter's-in-laws and she got this information only on 16.08.2019 through her second daughter Ms. Bhavna Devi; her daughter was taken to CHC Ratti and thereafter to Medical College Ner Chowk for treatment; where-after, she was referred to PGI, Chandigarh on 18.08.2019.
3(ii) It appears from the record that Smt. Rekha Devi was referred to Medical College Ner Chowk by the M.O. CHC Ratti on 17.08.2019 from where she was referred to PGI, Chandigarh on 18.08.2019. On 19.08.2019, she was brought back to Medical College Ner Chowk. The Medical Officer there declared her unfit to make any statement. On 20.08.2019, complainant produced a note allegedly written ::: Downloaded on - 07/11/2019 20:26:07 :::HCHP 3 by her daughter Smt. Rekha Devi in respect of her alleged torture by her husband. Rekha Devi eventually died on 22.8.2019 in Zonal Hospital .
Mandi. Its' on account of above facts that the present FIR was registered and bail petitioner along with his wife Smt. Hema Devi and his son Sh.
Jeevan Singh (husband of deceased) were arrested on 23.08.2019. Smt. Hema Devi stands released on bail on 20.09.2019, by learned Additional Sessions Judge-I, District Mandi.
4. Learned Additional Advocate General has opposed the grant of bail on the ground that the petitioner can influence the witnesses and can hamper the trial.
5. It is apt to refer to the guidelines for grant/or refusal of bail, reiterated by the Hon'ble Apex Court in Cr. Appeal No. 1603 of 2019, titled Shri P. Chidambaram vs. Central Bureau of Investigation, decided on 22.10.2019, relevant segments whereof are reproduced hereinafter:-
"17. Expression of prima facie reasons for granting or refusing to grant bail is a requirement of law especially where such bail orders are appealable so as to indicate application of mind to the matter under consideration and the reasons for conclusion. Recording of reasons is necessary since the accused/prosecution/victim has every right to know the reasons for grant or refusal to grant bail. This will also help the appellate court to appreciate and consider the reasonings for grant or refusal to grant bail. But giving reasons for exercise of discretion in granting or refusing to grant bail is different from discussing the merits or demerits of the case. At the ::: Downloaded on - 07/11/2019 20:26:07 :::HCHP 4 stage of granting bail, an elaborate examination of evidence and detailed reasons touching upon the merit of the case, which may prejudice the accused, should .
be avoided. Observing that "at the stage of granting bail, detailed examination of evidence and elaborate documentation of the merits of the case should be avoided", in Niranjan Singh, it was held as under:-
"3. ......Detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself."
22. The jurisdiction to grant bail has to be exercised on the basis of the well-settled principles having regard to the facts and circumstances of each case. The following factors are to be taken into consideration while considering an application for bail:- (i) the nature of accusation and the severity of the punishment in the case of conviction and the nature of the materials relied upon by the prosecution; (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant or the witnesses; (iii) reasonable possibility of securing the presence of the accused at the time of trial or the likelihood of his abscondence; (iv) character behaviour and standing of the accused and the circumstances which are peculiar to the accused;
(v) larger interest of the public or the State and similar other considerations (vide Prahlad Singh Bhati v. NCT, Delhi and another (2001) 4 SCC 280). There is no hard and fast rule regarding grant or refusal to grant bail. Each case has to be considered on the facts and circumstances of each case and on its own merits. The discretion of the court has to be exercised judiciously and not in an arbitrary manner. At this stage itself, it is necessary for us to indicate that we ::: Downloaded on - 07/11/2019 20:26:07 :::HCHP 5 are unable to accept the contention of the learned Solicitor General that "flight risk" of economic offenders should be looked at as a national .
phenomenon and be dealt with in that manner merely because certain other offenders have flown out of the country. The same cannot, in our view, be put in a straight-jacket formula so as to deny bail to the one who is before the Court, due to the conduct of other offenders, if the person under consideration is otherwise entitled to bail on the merits of his own case. Hence, in our view, such consideration including as to "flight risk" is to be made on individual basis being uninfluenced by the unconnected cases, more so, when the personal liberty is involved.
23. In Kalyan Chandra Sarkar v. Rajesh Ranjan and another (2004) 7 SCC 528, it was held as under:-
"11. The law in regard to grant or refusal of bail is very well settled.The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non- application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:
(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.::: Downloaded on - 07/11/2019 20:26:07 :::HCHP 6
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.
.
(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh (2002) 3 SCC 598 and Puran v. Rambilas (2001) 6 SCC
338.) Referring to the factors to be taken into consideration for grant of bail, in Jayendra Saraswathi Swamigal v. State of Tamil Nadu (2005) 2 SCC 13, it was held as under:-
"16. .......The considerations which normally weigh with the court in granting bail in non- bailable offences have been explained by this Court r in State v. Capt. Jagjit Singh AIR 1962 SC 253 and Gurcharan Singh v. State (Delhi Admn.) (1978) 1 SCC 118 and basically they are -- the nature and seriousness of the offence; the character of the evidence; circumstances which are peculiar to the accused; a reasonable possibility of the presence of the accused not being secured at the trial;
reasonable apprehension of witnesses being tampered with; the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case......"
24. After referring para (11) of Kalyan Chandra Sarkar, in State of U.P. through CBI v. Amarmani Tripathi (2005) 8 SCC 21, it was held as under:-
"18. It is well settled that the matters to be considered in an application for bail are (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 charge;
(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 ::: Downloaded on - 07/11/2019 20:26:07 :::HCHP 7 accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, .
of course, of justice being thwarted by grant of bail [see Prahlad Singh Bhati v. NCT, Delhi (2001) 4 SCC 280 and Gurcharan singh v. State (Delhi Admn.)(1978) 1 SCC 118]. While a vague allegation that the accused may tamper with the evidence or witnesses may not be a ground to refuse bail, if the accused is of such character that his mere presence at large would intimidate the witnesses or if there is material to show that he will use his liberty to subvert justice or tamper with the evidence, then bail will be refused........". Hon'ble Apex Court in 2019 (1) Cr.C.C.163, titled Sangitaben Shaileshbhai vs. State of Gujarat and anr., held as under:-
".........while adjudicating a bail application, Section 439 of the Code of Criminal Procedure, 1973 is the guiding principle wherein Court takes into consideration, inter alia, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds. Each criminal case presents its own peculiar factual matrix, and therefore, certain grounds peculiar to a particular case may have to be taken into account by the Court. However, the Court has to only opine as to whether there is prima facie case against the accused. The Court must not undertake meticulous examination of the evidence collected by the police, or rather order specific tests as done in the present case......."::: Downloaded on - 07/11/2019 20:26:07 :::HCHP 8
6. In the light of above law, following facts need consideration:-
(a) The bail petitioner is father-in-law of the deceased, .
presently aged 62 years. Mother-in-law of deceased Smt. Hima Devi was enlarged on bail by the Learned Additional Sessions Judge, District Mandi on 20.09.2019.
(b) Bail petitioner is in custody w.e.f. 23.08.2019.
(c) The entire investigation in the matter is complete.
(d) The police report under Section 173 Cr.P.C stands r filed on 22.10.2019.
(e) The deceased though was married for about 10 years and her mother has alleged torture of her daughter in the hands of her husband and in-laws, however, the record does not show any complaint made by the deceased in this regard to any authority at any point.
(f) Though, it is not desirable to refer to the record at this stage, however, the suicide note allegedly written by the deceased has not been investigated by the police. There is nothing in the status report as to whether the said note is in the handwriting of the deceased herself or not. Even otherwise, in the said note, the allegations are against her husband and not against the bail petitioner.
(g) Though the allegations levelled in the complaint are of serious nature, however, ultimate outcome can only be known after the culmination of the trial. At this stage, to incarcerate her father-in-law/ bail petitioner in jail for an indefinite period during the trial will not be appropriate.
(h) At pre conviction stage, presumption of innocence will be there. Object of keeping a person in custody is to ensure that he faces trial and receives ::: Downloaded on - 07/11/2019 20:26:07 :::HCHP 9 sentence that may be imposed upon him. Bail petitioner is permanent resident of Village and P.O. Sakroha, Tehsil Balh, District Mandi, therefore, his .
presence can always be ensured in trial.
7. In view of the above, instant petition is allowed.
Accordingly, the bail petitioner is ordered to be released on bail in FIR No.232 of 2019 dated 19.08.2019, under Sections 498-A, 306 read with Section 34 of the Indian Penal Code, registered at Police Station Balh, District Mandi, H.P., on his furnishing personal bail bond in the sum of Rs. 50,000/- with one local surety in the like amount to the satisfaction of the learned Trial Court or learned Competent Court of jurisdiction, where the FIR in question was registered, subject to following conditions:-
i) The petitioner shall not contact the complainant and witnesses, to threaten or browbeat them or to use any pressure tactics in any manner whatsoever.
ii) The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer or tamper with the evidence.
iii) The petitioner shall regularly attend the trial on each and every date of hearing and if prevented by any reason to do so, shall seek exemption from personal appearance by filing appropriate application.
iv) The petitioner shall not leave India without prior permission of this Court.
v) Petitioner shall not tamper with prosecution evidence nor hamper investigation of the case in any manner whatsoever.::: Downloaded on - 07/11/2019 20:26:07 :::HCHP 10
It is clarified that the observations made above are only for .
the purpose of adjudication of the present bail petition and the learned Trial Court shall not be influenced by any of these observations while deciding the case on merits. It shall be open for the prosecution to move for cancellation of the bail in case the petitioner abuses the liberty granted and breaches the conditions of bail. The petition stands disposed of in the above terms.
Copy dasti.
(Jyotsna Rewal Dua) Judge 7th November, 2019 (reena) ::: Downloaded on - 07/11/2019 20:26:07 :::HCHP 11 .
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