Himachal Pradesh High Court
Prem Lata vs State Of Himachal Pradesh on 3 March, 2017
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P. (M) Nos. 226, 227, 228, 229 and 230
of 2017.
.
Date of decision: 3rd March, 2017.
1. Cr.M.P.(M) No. 226 of 2017.
Prem Lata ...Petitioner.
Versus
State of Himachal Pradesh. ...Respondent.
of
2. Cr.M.P.(M) No. 227 of 2017.
Banti Devi rt ...Petitioner.
Versus
State of Himachal Pradesh. ...Respondent.
3. Cr.M.P.(M) No. 228 of 2017.
Karam Chand Sharma ...Petitioner.
Versus
State of Himachal Pradesh. ...Respondent.
4. Cr.M.P.(M) No. 229 of 2017.
Lekh Ram Sharma ...Petitioner.
Versus
State of Himachal Pradesh. ...Respondent.
5. Cr.M.P.(M) No. 230 of 2017.
Asha Ram Sharma ...Petitioner.
Versus
State of Himachal Pradesh. ...Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No
For the Petitioner(s): Mr. Rahul Gautam, Advocate.
For the Respondent: Ms.Meenakshi Sharma and Mr.
Rupinder Singh, Additional Advocate
Generals with Mr.J.S.Guleria, Assistant
Advocate General.
ASI Dev Krishan, I/O, Police Station,
Darlaghat, District Solan, present
alongwith records.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes
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2
Tarlok Singh Chauhan, Judge (oral)
.
The petitioner(s) are mother-in-law, father-in-law, husband, brother-in-law and sister-in-law of the complainant and have been arraigned as accused in FIR No.10 of 2017 dated 21.2.2017, registered at Police Station, Darlaghat, District Solan, H.P., under Sections 498A, 506, 323 and of 34 of IPC.
2. The complainant is married to petitioner Karam Chand and is rt alleged to have been tortured by him and other co-petitioners.
3. The respondents have produced the records of the investigation and have also filed the status report.
4. It is a matter of common knowledge that unfortunately matrimonial litigation is rapidly increasing in our country. All the courts in our country including this Court are flooded with matrimonial cases. This clearly demonstrates discontent and unrest in the family life of a large number of people of the society. Unfortunately at the time of filing of the complaint the implications and consequences are not properly visualized even by the complainant that such complaint can lead to insurmountable harassment, agony and pain to the complainant and obviously to the accused.
5. Matrimonial disputes and unrest can best be solved within the four corners of the house, because the criminal trial lead to immense sufferings for all concerned. Even ultimate acquittal in the trial may also not be able to wipe out the deep scars of sufferings of ignominy.
6. The aforesaid observations are not to suggest that the wife must tolerate the humiliation, harassment or even the beatings and torture being affected upon her by husband or his family members. It cannot be lost sight of that with initiation of criminal proceedings and thereafter long and protracted ::: Downloaded on - 15/04/2017 21:58:05 :::HCHP 3 criminal trials, the same only lead to rancour, acrimony and bitterness in the relationship amongst the parties and it is also a matter of common knowledge .
that in cases filed by the complainant, if the husband remains in jail for a few days, it would ruin the chances of amicable settlement altogether. The process of suffering is extremely long and painful.
7. The learned Assistant Advocate General would argue that though of apparently the case is an outcome of a matrimonial dispute, but the allegations against the petitioner(s) are serious and therefore, they should not rt be ordered to be released on bail.
8. Seriousness of the allegations or the availability of the material in support thereof is not only the considerations for declining the bail. After-all, at the pre-conviction stage, there is presumption of innocence. That apart, the object of keeping a person in custody is only to ensure his availability to face the trial and receive the sentence that may be passed. This was so held by the Hon'ble Supreme Court in its recent judgment in Dr.Vinod Bhandari versus State of Madhya Pradesh 2015 AIR SCW 1052, wherein it was held:-
"12. It is well settled that at pre-conviction stage, there is presumption of innocence. The object of keeping a person in custody is to ensure his availability to face the trial and to receive the sentence that may be passed. The detention is not supposed to be punitive or preventive. Seriousness of the allegation or the availability of material in support thereof are not the only considerations for declining bail. Delay in commencement and conclusion of trial is a factor to be taken into account and the accused cannot be kept in custody for indefinite period if trial is not likely to be concluded within reasonable time. Reference may be made to decisions of this Court in Kalyan Chandra Sarkar vs. Rajesh Ranjan (2005) 2 SCC 42:(AIR 2005 SC
921), State of U.P. vs. Amarmani Tripathi (2005) 8 SCC 21: (AIR 2005 SC 3490), State of Kerala vs. Raneef (2011) 1 SCC 784: (AIR 2011 SC 340) and Sanjay Chandra vs. CBI(2012) 1 SCC 40 :(AIR 2012 SC 830).
13. In Kalyan Chandra Sarkar (AIR 2005 SC 921) (supra), it was observed:::: Downloaded on - 15/04/2017 21:58:05 :::HCHP 4
"8. It is trite law that personal liberty cannot be taken away except in accordance with the procedure established by law. Personal liberty is a constitutional guarantee. However, Article 21 which guarantees the above right also contemplates deprivation of personal liberty by .
procedure established by law. Under the criminal laws of this country, a person accused of offences which are non-bailable is liable to be detained in custody during the pendency of trial unless he is enlarged on bail in accordance with law. Such detention cannot be questioned as being violative of Article 21 since the same is authorised by law. But even persons accused of non-bailable offences are entitled to bail if the court concerned comes to the conclusion that the prosecution has failed to establish a prima facie case against him and/or if the court is satisfied for reasons to be recorded that in spite of the existence of prima facie case there is a need to release such persons of on bail where fact situations require it to do so. In that process a person whose application for enlargement on bail is once rejected is not precluded from filing a subsequent application for grant of bail if there is a change in the fact situation. In such cases if the circumstances then prevailing require that such persons be released rt on bail, in spite of his earlier applications being rejected, the courts can do so."
14. In Amarmani Tripathi (AIR 2005 SC 3490) (supra), it was observed :
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 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. We may also refer to the following principles relating to grant or refusal of bail stated in Kalyan Chandra Sarkar v. Rajesh Ranjan [(2004) 7 SCC 528]: (SCC pp. 535-36, para 11): (at Page 1871 of AIR) "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.
(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.::: Downloaded on - 15/04/2017 21:58:05 :::HCHP 5
(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.)"
.
22. While a detailed examination of the evidence is to be avoided while considering the question of bail, to ensure that there is no prejudging and no prejudice, a brief examination to be satisfied about the existence or otherwise of a prima facie case is necessary. An examination of the material in this case, set out above, keeping in view the aforesaid principles, disclose prima facie, the existence of a conspiracy to which Amarmani and Madhumani were parties. The contentions of the respondents that the confessional statement of Rohit Chaturvedi is inadmissible in evidence and that that [pic]should of be excluded from consideration, for the purpose of bail is untenable. This Court had negatived a somewhat similar contention in Kalyan Chandra Sarkar thus: (SCC p. 538, para 19) (at Page 1873 of AIR) rt "19. The next argument of learned counsel for the respondent is that prima facie the prosecution has failed to produce any material to implicate the respondent in the crime of conspiracy. In this regard he submitted that most of the witnesses have already turned hostile. The only other evidence available to the prosecution to connect the respondent with the crime is an alleged confession of the co- accused which according to the learned counsel was inadmissible in evidence. Therefore, he contends that the High Court was justified in granting bail since the prosecution has failed to establish even a prima facie case against the respondent. From the High Court order we do not find this as a ground for granting bail. Be that as it may, we think that this argument is too premature for us to accept. The admissibility or otherwise of the confessional statement and the effect of the evidence already adduced by the prosecution and the merit of the evidence that may be adduced hereinafter including that of the witnesses sought to be recalled are all matters to be considered at the stage of the trial."
15. In Raneef (AIR 2011 SC 340) (supra), it was observed :
"15. In deciding bail applications an important factor which should certainly be taken into consideration by the court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail. In the present case the respondent has already spent 66 days in custody (as stated in Para 2 of his counter-affidavit), and we see no reason why he should be denied bail. A doctor incarcerated for a long period may end up like Dr. Manette in Charles Dicken's novel A Tale of Two Cities, who forgot his profession and even his name in the Bastille."
16. In Sanjay Chandra (AIR 2012 SC 830) (supra), it was observed:
"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 ::: Downloaded on - 15/04/2017 21:58:05 :::HCHP 6 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.
.
24. In the instant case, we have already noticed that the "pointing finger of accusation" against the appellants is "the seriousness of the charge". The offences alleged are economic offences which have resulted in loss to the State exchequer. Though, they contend that there is a possibility of the appellants tampering with the witnesses, they have not placed any material in support of the allegation. In our view, seriousness of the charge is, no doubt, one of the relevant considerations while considering bail applications but that is not the only test or the factor: the other factor that also requires to be taken note of is the punishment that could be imposed after trial and of conviction, both under the Penal Code and the Prevention of Corruption Act. Otherwise, if the former is the only test, we would not be balancing the constitutional rights but rather "recalibrating the scales of justice."
9. rt It cannot be disputed that the principles which govern the grant of ordinary bail do not furnish an exact parallel right of anticipatory bail, but still such principles have to be kept in mind, namely, the object of bail which is to secure the attendance of the accused at the time of trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial.
Otherwise, bail is not to be withheld as a punishment. The Court has also to consider whether there is any possibility of the accused tampering with evidence or influencing witnesses etc. Once these tests are satisfied, bail should be granted to an under-trial which is also important as viewed from another angle, namely, an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he were in custody. Thus, grant or non-grant of bail depends upon a variety of circumstances and the cumulative effect thereof enters into judicial verdict.
Any single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail.
10. In this context, it is apt to refer to a recent judgment of Hon'ble Supreme Court in Bhadresh Bipinbhai Sheth Vs. State of Gujarat & another JT 2015 (8) SC 125, paragraphs 19 to 23 read thus:-
::: Downloaded on - 15/04/2017 21:58:05 :::HCHP 7"19. Before we proceed further, we would like to discuss the law relating to grant of anticipatory bail as has been developed through judicial interpretative process. A judgment which needs to be pointed out is a .
Constitution Bench Judgment of this Court in the case of Gurbaksh Singh Sibbia and Others v. State of Punjab[1]. The Constitution Bench in this case emphasized that provision of anticipatory bail enshrined in Section 438 of the Code is conceptualised under Article 21 of the Constitution which relates to personal liberty. Therefore, such a provision calls for liberal interpretation of Section 438 of the Code in light of Article 21 of the Constitution. The Code of explains that an anticipatory bail is a pre- arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail. The distinction between an ordinary order of bail and an order of rt anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore, effective at the very moment of arrest. A direction under Section 438 is therefore intended to confer conditional immunity from the 'touch' or confinement contemplated by Section 46 of the Code. The essence of this provision is brought out in the following manner:
"26. We find a great deal of substance in Mr Tarkundes submission that since denial of bail amounts to deprivation of personal liberty, the court should lean against the imposition of unnecessary restrictions on the scope of Section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section.
Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail. An over-generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions. The beneficent provision contained in Section 438 must be saved, not jettisoned. No doubt can linger after the decision in Maneka Gandhi v. Union of India, (1978) 1 SCC 248, that in order to meet the challenge of Article 21 of the Constitution, the procedure established by law for depriving a person of his liberty must be fair, just and reasonable. Section 438, in the form in which it is conceived by the legislature, is open to no exception on the ground that it prescribes a procedure which is unjust or unfair. We ought, at all costs, to avoid throwing it open to a Constitutional challenge by reading words in it which are not to be found therein".::: Downloaded on - 15/04/2017 21:58:05 :::HCHP 8
20. Though the Court observed that the principles which govern the grant of ordinary bail may not furnish an exact parallel to the right to anticipatory .
bail, still such principles have to be kept in mind, namely, the object of bail which is to secure the attendance of the accused at the trial, and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. The Court has also to consider whether there is any possibility of the accused tampering with evidence or influencing witnesses etc. Once these tests are satisfied, of bail should be granted to an undertrial which is also important as viewed from another angle, namely, an accused person who enjoys freedom is in a much better position to look after his case and to properly defend himself than if he rt were in custody. Thus, grant or non-grant of bail depends upon a variety of circumstances and the cumulative effect thereof enters into judicial verdict.
The Court stresses that any single circumstance cannot be treated as of universal validity or as necessarily justifying the grant or refusal of bail. After clarifying this position, the Court discussed the inferences of anticipatory bail in the following manner:
"31. In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior motive, the object being to injure and humiliate the applicant by having him arrested, a direction for the release of the applicant on bail in the event of his arrest would generally be made. On the other hand, if it appears likely, considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made. But the converse of these propositions is not necessarily true. That is to say, it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond. There are several other considerations, too numerous to enumerate, the combined effect of which must weigh with the court while granting or rejecting anticipatory bail. The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicants presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and the larger interests of the public or the State are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail. The relevance of these considerations was pointed out in The State v. Captain Jagjit Singh, AIR 1962 SC 253 : (1962) 3 SCR 622 : (1962) 1 Cri LJ 216, which, though, was a case under the old Section 498 ::: Downloaded on - 15/04/2017 21:58:05 :::HCHP 9 which corresponds to the present Section 439 of the Code. It is of paramount consideration to remember that the freedom of the individual is as necessary for the survival of the society as it is for the .
egoistic purposes of the individual. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints on his freedom, by the acceptance of conditions which the court may think fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail."
21. It is pertinent to note that while interpreting the expression may, if it thinks of fit occurring in Section 438(1) of the Code, the Court pointed out that it gives discretion to the Court to exercise the power in a particular case or not, and once such a discretion is there merely because the accused is charged with rt a serious offence may not by itself be the reason to refuse the grant of anticipatory bail if the circumstances are otherwise justified. At the same time, it is also the obligation of the applicant to make out a case for grant of anticipatory bail. But that would not mean that he has to make out a special case. The Court also remarked that a wise exercise of judicial power inevitably takes care of the evil consequences which are likely to flow out of its intemperate use.
22. Another case to which we would like to refer is the judgment of a Division Bench of this Court in the case of Siddharam Satlingappa Mhetre v. State of Maharashtra and Others[2]. This case lays down an exhaustive commentary of Section 438 of the Code covering, in an erudite fashion, almost all the aspects and in the process relies upon the aforesaid Constitution Bench judgment in Gurbaksh Singh's case. In the very first para, the Court highlighted the conflicting interests which are to be balanced while taking a decision as to whether bail is to be granted or not, as is clear from the following observations:
"1. Leave granted. This appeal involves issues of great public importance pertaining to the importance of individual's personal liberty and the society's interest. Society has a vital interest in grant or refusal of bail because every criminal offence is the offence against the State. The order granting or refusing bail must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society. The law of bails dovetails two conflicting interests, namely, on the one hand, the requirements of shielding society from the hazards of those committing crimes and potentiality of repeating the same crime while on bail and on the other hand, absolute adherence to the fundamental principle of criminal jurisprudence regarding presumption of innocence of an accused until he is found guilty and the sanctity of individual liberty."::: Downloaded on - 15/04/2017 21:58:05 :::HCHP 10
23. The principles which can be culled out, for the purposes of the instant case, can be stated as under:
.
(i) The complaint filed against the accused needs to be thoroughly examined, including the aspect whether the complainant has filed a false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict of action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in rt accordance with law.
(ii) The gravity of charge and the exact role of the accused must be properly comprehended. Before arrest, the arresting officer must record the valid reasons which have led to the arrest of the accused in the case diary. In exceptional cases, the reasons could be recorded immediately after the arrest, so that while dealing with the bail application, the remarks and observations of the arresting officer can also be properly evaluated by the court.
(iii) It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion to grant bail must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined the investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. A great ignominy, humiliation and disgrace is attached to arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post-conviction stage.
(iv) There is no justification for reading into Section 438 CrPC the limitations mentioned in Section 437 CrPC. The plentitude of Section 438 must be given its full play. There is no requirement that the accused must make out a special case for the exercise of the power to grant anticipatory bail. This virtually, reduces the salutary power conferred by Section 438 CrPC to a dead letter. A person seeking anticipatory bail is still a free man entitled to the presumption of innocence. He is willing to submit to restraints and conditions on his freedom, by the acceptance of conditions which the court may deem ::: Downloaded on - 15/04/2017 21:58:05 :::HCHP 11 fit to impose, in consideration of the assurance that if arrested, he shall be enlarged on bail.
.
(v) The proper course of action on an application for anticipatory bail ought to be that after evaluating the averments and accusations available on the record if the court is inclined to grant anticipatory bail then an interim bail be granted and notice be issued to the Public Prosecutor. After hearing the Public Prosecutor the court may either reject the anticipatory bail application or confirm the initial order of granting bail. The court would certainly be entitled to impose of conditions for the grant of anticipatory bail. The Public Prosecutor or the complainant would be at liberty to move the same court for cancellation or modifying the conditions of anticipatory bail at any rt time if liberty granted by the court is misused. The anticipatory bail granted by the court should ordinarily be continued till the trial of the case.
(vi) It is a settled legal position that the court which grants the bail also has the power to cancel it. The discretion of grant or cancellation of bail can be exercised either at the instance of the accused, the Public Prosecutor or the complainant, on finding new material or circumstances at any point of time.
(vii) In pursuance of the order of the Court of Session or the High Court, once the accused is released on anticipatory bail by the trial court, then it would be unreasonable to compel the accused to surrender before the trial court and again apply for regular bail.
(viii) Discretion vested in the court in all matters should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations.
(ix) No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with legislative intention, the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case.
(x) We shall also reproduce para 112 of the judgment wherein the Court delineated the following factors and parameters that need to be taken into consideration while dealing with anticipatory bail:
::: Downloaded on - 15/04/2017 21:58:05 :::HCHP 12(a) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;
.
(b) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence;
(c) The possibility of the applicant to flee from justice;
(d) The possibility of the accused's likelihood to repeat similar of or other offences;
(e) Where the accusations have been made only with the rt object of injuring or humiliating the applicant by arresting him or her;
(f) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;
(g) 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 the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution, because over implication in the cases is a matter of common knowledge and concern;
(h) 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 free, fair and full investigation, and there should be prevention of harassment, humiliation and unjustified detention of the accused;
(i) The Court should consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;
(j) 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."
11. The Hon'ble Supreme Court in Arnesh Kumar Vs. State of Bihar and another (2014) 8 SCC 273 has taken judicial note of the fact that ::: Downloaded on - 15/04/2017 21:58:05 :::HCHP 13 there is phenomenal increase in matrimonial disputes in recent years and though Section 498-A IPC was introduced with avowed object to combat the .
menace of harassment to a woman at the hands of her husband and his relatives, but the same has only lent a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives.
It was also observed that arrest in such cases brings humiliation, curtails of freedom and casts scars forever and therefore, to ensure that this provision is not misused, the Hon'ble Supreme Court laid down the following guidelines:-
arrest rt "11. Our endeavour in this judgment is to ensure that police officers do not accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:
11.1 All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C.;
11.2 All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);
11.3 The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;
11.4 The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms of aforesaid only after recording its satisfactions, the Magistrate will authorize detention;
11.5 The decision not to arrest an accused be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police to the district for the reasons to be recorded in writing;
11.6 Notice of appearance in terms of Section 41-A of Cr.P.C be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; 11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, ::: Downloaded on - 15/04/2017 21:58:05 :::HCHP 14 they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction; 11.8 Authorising detention without recording reasons as aforesaid by the .
Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court."
12. Adverting to the facts of the case, the allegations levelled by the complainant against the petitioner(s) are far too general. The authenticity and of correctness whereof can only be determined during the course of regular trial.
In such circumstances, I feel that it would be travesty of justice to deny bail to the petitioner(s).
rt
13. Moreover, it is not even the case of the prosecution that in the event of the petitioner(s) being released on bail, they would in any manner impede the course and cause of justice or that the petitioner(s) may in any manner hamper the free, fair and full investigation.
14. The object of keeping a person in custody is to ensure his availability to face trial and receive the sentence that may be passed upon him, while in the present case, there is no reason to doubt that the petitioner(s) would not join the investigation or even the trial or that they would not receive the punishment that may be ultimately awarded. This assumes importance when there is no allegation to this effect even from the prosecution side. Even otherwise, stringent conditions for securing the presence of the petitioner(s) for the purpose of trial etc. can always be imposed.
15. In view of the aforesaid discussion, the petitioner(s) have carved out a case for grant of bail. Accordingly, all the petitions are allowed and the petitioner(s) are ordered to be released on bail in FIR No. 10 of 2017 dated 21.2.2017, registered at Police Station, Darlaghat, District Solan, H.P., under Sections 498A, 506, 323 and 34 of IPC, on their furnishing personal bonds in the sum of `20,000/- each with one surety each of the like amount to the ::: Downloaded on - 15/04/2017 21:58:05 :::HCHP 15 satisfaction of Judicial Magistrate Ist Class, Arki, District Solan, H.P. with the following conditions:-
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(i) that the petitioners shall not, directly or indirectly, 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 to any police officer;
(ii) that the petitioners shall not tamper with the prosecution of evidence or threaten the witnesses;
(iii) that the petitioners shall make themselves available for interrogation by the police officer as and when required.
(iv) rt that the petitioners shall not misuse their liberty in any manner.
16. Learned Judicial Magistrate Ist Class, Arki, District Solan, H.P. is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.
17. Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove. Registry is directed to place a copy of this judgment on the files of Cr.M.P.(M) Nos. 227, 228, 229 and 230 of 2017.
Petitions stand disposed of.
Copy Dasti.
(Tarlok Singh Chauhan), Judge.
3rd March, 2017.
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