Himachal Pradesh High Court
Banti Devi vs State Of Himachal Pradesh on 10 January, 2025
2025:HHC:2268 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP (M) Nos. 2900 and 2901 of 2024 Reserved on: 03.01.2025 Date of Decision: 10.01.2025.
(1) Cr.MP(M) No. 2900 of 2024
Banti Devi ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
(2) Cr.MP(M) No. 2901 of 2024
Jai Dei ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?1 No. For the Petitioner(s) : Mr. Anirudh Sharma, Advocate.
For the Respondent/State : Mr. Lokender Kutlehria, Additional Advocate General.
1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2
2025:HHC:2268 Rakesh Kainthla, Judge The petitioners have filed the present petition for seeking regular bail. It has been asserted that the petitioners were arrested for the commission of offences punishable under Sections 498-A, 504, 506, and 306 read with Section 34 of the Indian Penal Code (IPC), registered at Police Station Arki, District Solan, H.P. The petitioners are innocent and have been falsely implicated. The petitioners would abide by all the terms and conditions, which the Court may impose. Hence, the petitions.
2. The petitions are opposed by filing separate status reports asserting that the father of the deceased made a complaint that deceased Pooja was being harassed by her husband and his relatives. She was not being provided with any maintenance. Her father-in-law Amar Chand, mother-in-law Banti Devi, brother-in-law Jagdish, and his wife Jai Dei used to harass her. They had turned her out of her matrimonial home. Her father-in-law had beaten the deceased three to four times. She was left in her paternal home on 29.02.2024 by her husband. He assured the deceased to take her after four to five days, but when she called her husband, he told her that he would not take 3 2025:HHC:2268 her with him. He also asked the deceased to commit suicide, so that he could marry again. The deceased attempted to commit suicide due to harassment of her husband and his relatives. The police registered the F.I.R. The deceased was discharged from PGI, and she made a statement on 05.08.2024 before the learned Judicial Magistrate Arki, District Solan, H.P., complaining about the harassment by her husband and his family members. She subsequently succumbed to her injuries, and Section 306 of IPC was added. It was found after investigation that Amar Chand, father-in-law and Dharampal husband of the deceased, used to beat her. Her brother-in-law Jagdish, sister-in-law Jai Dei and mother-in-law Banti Devi also used to harass her physically and mentally. They did not provide any food to her. They used to demand dowry, and when the deceased was unable to meet the demand, they used to beat her. Once, Amar Chand, father-in- law of the deceased, demanded a fridge, and when she could not provide the fridge, he asked the father of the deceased to provide an old fridge as per his capacity. The deceased had asked her husband to take her with him, but he declined and asked her to commit suicide. Bimla Devi and Uma Devi, the neighbours of the deceased, have supported the version regarding the harassment 4 2025:HHC:2268 of the deceased. The petitioners surrendered before the police after the dismissal of their pre-arrest bail petition. The challan was prepared and presented before learned Judicial Magistrate First Class, Arki, on 11.11.2024. Therefore, it was prayed that the present petition be dismissed.
3. I have heard Mr. Anirudh Sharma, learned counsel for the petitioners and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent-State.
4. Mr. Anirudh Sharma, learned counsel for the petitioners, submitted that the petitioners are innocent and they are falsely implicated. They would abide by all the terms and conditions, which the Court may impose. Therefore, he prayed that the present petitions be allowed and the petitioners be released on bail.
5. Mr Lokender Kutlehria, learned Additional Advocate General for the respondent-State, submitted that the petitioners had abetted the commission of suicide by the deceased. The offence committed by them is heinous, and the trial has not commenced; therefore, he prayed that the present petitions be dismissed.
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6. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
7. The parameters for granting bail were considered by the Hon'ble Supreme Court in Ramratan v. State of M.P., 2024 SCC OnLine SC 3068, wherein it was observed as follows: -
"12. The fundamental purpose of bail is to ensure the ac- cused's presence during the investigation and trial. Any conditions imposed must be reasonable and directly re- lated to this objective. This Court in Parvez Noordin Lokhandwalla v. State of Maharastra (2020) 10 SCC 77 ob- served that though the competent court is empowered to exercise its discretion to impose "any condition" for the grant of bail under Sections 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the administration of justice, secure the pres- ence of the accused and ensure that the liberty of the ac- cused is not misused to impede the investigation, over- awe the witnesses or obstruct the course of justice. The relevant observations are extracted herein below:
"14. The language of Section 437(3) CrPC which uses the expression "any condition ... otherwise in the in- terest of justice", has been construed in several deci- sions of this Court. Though the competent court is em- powered to exercise its discretion to impose "any condi-
tion" for the grant of bail under Sec-
tions 437(3) and 439(1)(a) CrPC, the discretion of the court has to be guided by the need to facilitate the admin- istration of justice, secure the presence of the accused and ensure that the liberty of the accused is not misused to im- pede the investigation, overawe the witnesses or obstruct the course of justice. Several decisions of this Court have dwelt on the nature of the conditions which can legiti-6
2025:HHC:2268 mately be imposed both in the context of bail and an- ticipatory bail." (Emphasis supplied)
13. In Sumit Mehta v. State (NCT of Delhi) (2013) 15 SCC 570, this Court discussed the scope of the discretion of the Court to impose "any condition" on the grant of bail and observed in the following terms:--
"15. The words "any condition" used in the provision should not be regarded as conferring absolute power on a court of law to impose any condition that it chooses to impose. Any condition has to be interpreted as a reasonable condition acceptable in the facts permissible in the circumstance and effective in the pragmatic sense and should not defeat the order of grant of bail. We are of the view that the present facts and circumstances of the case do not warrant such extreme condition to be imposed." (Emphasis supplied)
14. This Court, in Dilip Singh v. State of Madhya Pradesh (2021) 2 SCC 779, laid down the factors to be taken into consideration while deciding the application for bail and observed:
"4. It is well settled by a plethora of decisions of this Court that criminal proceedings are not for the reali- sation of disputed dues. It is open to a court to grant or refuse the prayer for anticipatory bail, depending on the facts and circumstances of the particular case. The factors to be taken into consideration while considering an application for bail are the nature of the accusation and the severity of the punishment in the case of convic- tion and the nature of the materials relied upon by the prosecution; reasonable apprehension of tampering with the witnesses or apprehension of threat to the com- plainant or the witnesses; the reasonable possibility of se- curing the presence of the accused at the time of trial or the likelihood of his abscondence; character, behaviour and standing of the accused; and the circumstances which are peculiar or the accused and larger interest of the public or the State and similar other considerations. A criminal 7 2025:HHC:2268 court, exercising jurisdiction to grant bail/anticipatory bail, is not expected to act as a recovery agent to re- alise the dues of the complainant, and that too, with- out any trial." (Emphasis supplied)
8. The present petition has to be decided as per the parameters laid down by the Hon'ble Supreme Court.
9. The petitioners are women. A special provision has been enacted for their benefit under Section 480 of Bhartiya Nagrik Surkasha Sanhita (BNSS), which provides that the Court may direct a person accused of or suspected of commission of any non-bailable offence be released on bail if such person is a child or a woman or is sick or infirm. This provision applies to a person brought before the Court other than the High Court or Court of Session, but the Courts have to keep this special provision in mind while considering the bail application of the persons falling in the categories mentioned in Section 480 of BNSS. It was laid down by the Karnataka High Court in Nethra vs State of Karnataka (12.05.2022 - KARHC): MANU/KA/2055/2022 that a woman can be released on bail even in case of murder because of special provisions under Section 437 of CrPC. It was observed:
"In terms of Section 437 of the Cr.P.C., bail can be granted in a non-bailable offence on three circumstances as 8 2025:HHC:2268 depicted in the proviso: (i) being a person below 16 years of age, (ii) a woman and (iii) is sick or infirm. The petitioner is a woman. She is entitled to consideration under Section 437 of the Cr.P.C. Before applying the aforesaid provision to the facts of the case and considering the case of the petitioner for enlargement on bail, it is germane to notice the application of the said provision by coordinate Benches of this Court all in the case of offences punishable under Section 302 of the IPC and they being women. A coordinate Bench of this Court in Kavitha V. State Of Karnataka-Crl. P. No. 2509 Of 2019, Decided On 05-08-2019, has held as follows:
"2. The complainant by the name of Smt. Indirani lodged a complaint stating that she had two sisters by the name Parvathamma and Baby and three brothers by the name Vijay Kumar, Subramani and Manjunath. The said Subramani was residing along with his brother Vijaya Kumar and his wife Smt. Kavitha, along with another sister, i.e., Baby and her two sons. The other brother, Manjunath, was residing along with his wife and children separately. In this background, it is alleged that, on 2-01-2019 at 2.00 p.m., the husband of the petitioner/accused by name Vijayakumar, telephoned to the husband of the complainant, stating that the deceased Subramani is dead. Thereafter, all these persons came to the house of Vijayakumar and saw the dead body of the deceased Subramani and suspected his death. Hence, after the post-mortem examination, they came to know that Subramani died due to asphyxia as a result of strangulation. On the basis of such information, the complainant lodged a complaint against the petitioner, which initially came to be registered in UDR No. 2/2019 and thereafter in Crime No. 5/2019 for the offences punishable under Section 302 of IPC and the police after thorough investigation, laid charge sheet against the petitioner/accused.9
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3. Learned counsel for the petitioner submitted that there are many people residing in the said house. The entire case revolves around the voluntary statement of the petitioner/accused, Kavitha. She informed her husband and others that she actually tried to wake him up, but he did not wake up, and she noticed that he was dead. Therefore, the prosecution has to prove beyond reasonable doubt that, actually, the petitioner/accused has committed the murder of the deceased by strangulation. It is also not available in the charge sheet that actually what transpired on the particular date of the incident and how many persons were present in the house. All those things are to be thrashed out during the course of a full- dressed trial.
4. In the above facts and circumstances of the case, proviso to Section 432 Cr.P.C. would come to the help of the petitioner herein. Even at this stage, if the court comes to the conclusion that a strong prima facie case is made out against a woman, still the court can exercise its discretion, and it may enlarge a lady on bail with conditions. Though the petition is filed under Section 439 of Cr.P.C., the proviso to Section 437 can be equally made use of. The said proviso says that, even if there appear reasonable grounds for believing that the accused is guilty of the offences punishable with death or imprisonment for life, provided the Court may direct that the person referred to in Clause (i) or Clause (ii), be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm. Therefore, in the above circumstances, in my opinion, as the petitioner/accused has been in jail since 5-01-2019 and the charge sheet has already been filed, she is entitled to be enlarged on bail during the trial, with certain condition........."(Emphasis supplied) Long before the said judgment, the very learned Judge in Ratnawwa and another V. State Of Karnataka-Crl. P. No. 10 2025:HHC:2268 100503 Of 2014, Decided On 13-03-2014, has held as follows:
"2. The petitioners, who are arrayed as accused Nos. 2 and 3 in Crime No. 117 of 2013 of Kundgol Police, have approached the Sessions Court, Hubli, for a grant of bail after filing of the charge sheet, which came to be rejected. Hence, petitioners are before this Court for grant of bail.
3. The brief factual aspects that emanate from records are that a person by the name of Parameshappa Basappa Naikar has lodged a complaint stating that, on 6.10.2013 at about 5.30 p.m., he has received a telephonic message from his son-in-law by name Manjappa Ningappa Balanaikar of Betadur Village that the accused persons-petitioners and one Dyamanna have assaulted the deceased Basappa Shivappa Balanaikar with a spade. Immediately, the complainant went to the spot and saw the dead body, and from one Ningappa Shivappa Balanaikar he came to know that Dyamanna had assaulted on the head of the deceased with a spade. It is alleged that petitioners Ratnawwa and Neelawwa have instigated said Dyamanna to assault the deceased, who has succumbed to injuries on the spot. The Police have investigated the matter, and even during the course of the investigation, the eye- witnesses have reiterated the same set of facts. CW- 8 Ningappa Shivappa Balanaikar, an eyewitness to the incident, has stated that the petitioners were present at the time of the incident, and they have instigated or abetted Dyamanna to commit an offence. Looking at the above factual aspects, no overt act has been alleged against these petitioners. The learned Sessions Judge, after considering the materials, has observed that the petitioners are the root cause for the incident and rejected the bail petition filed by the petitioners. Police have filed a 11 2025:HHC:2268 charge sheet against the petitioners. The petitioners were arrested on 7-10-2013, and since then, they have been in judicial custody.
4. The proviso in Section 437 of Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.' for brevity) empowers the Court that even if the offences which are punishable with death or imprisonment for life or imprisonment for seven years or more, the Court may direct that such a person referred to in clause-(i) or (ii) of Section 437 of Cr.P.C. be released on bail if it is satisfied that if such person is under the age of 16 years or is a woman or is sick or infirm. Therefore, it is a special proviso appended to Section 437 of Cr.P.C., particularly considering the women folk, sick and infirm persons and persons who are less than 16 years old. When specific overt acts are not there, the abetment has to be proved before the Court beyond all reasonable doubt and further that only on the basis of such abetment the other accused has committed such a ghastly incident. Hence, it is not necessary to keep the petitioners in jail. ....."
(Emphasis supplied) In a later judgment, another coordinate Bench of this Court in Thippamma @ Thippakka V. State Of Karnataka- Crl. P. No. 8575 Of 2017, Decided On 01-03-2018, has held as follows:
"2. Respondent-Police has registered a complaint against the petitioner and another accused for the offences under Section 302 and 201 r/w 34 of IPC in Crime No. 225 of 2016. The complaint was made by the son of the deceased. It appears that there was an illicit relationship between accused Nos. 1 and 2, and the deceased came to know of this. It is alleged that in the background of illicit relationships, no. 10-11-2016, between 11.00 p.m. and 1.30 p.m., accused Nos. 1 and 2 caused the death of Thippeswamy.12
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3. The learned counsel for the petitioner argues that there are no eyewitnesses to the incident. The prosecution has to prove the circumstances. The investigation has been completed, a charge sheet is filed, and the other accused is released on bail. This petitioner is a woman and, therefore, is required to be released on bail.
4. The HCGP opposes the grant of bail, stating that there are prima facie materials, although the entire case rests on circumstantial evidence.
5. Having perused the complaint and other materials, it can be said that since the other accused has been released on bail, this petitioner, being a woman, can also be released on bail. That apart, this case rests on circumstantial evidence. The burden is on the prosecution to prove every link in the chain of circumstances. Since a charge sheet has been filed and the petitioner has been in custody for quite a long time, she can be admitted to bail......."
(Emphasis supplied) All the afore-quoted judgments rendered by the coordinate Benches of this Court were considering the purport of Section 437 of the Cr.P.C. and were cases where accused No. 1 therein were women, and all of them alleged of offence punishable under Section 302 of the IPC for commission of murder. It is also a matter of record that the alleged accomplice in the act of murder, Vijay Kumar, is granted bail on 13-04-2022 by the learned Sessions Judge. For the aforesaid facts, the statute, i.e., Section 437 of the Cr.P.C. and its application in the judgments of three coordinate Benches all would ensure to the benefit of the petitioner to be enlarged on bail notwithstanding the fact that the offence alleged is under Section 302 of the IPC. It is not the law that bail should always be denied in a case where the offence punishable is death or life imprisonment. In exceptional cases, if the statute permits and the facts not being so gory and grave criminal 13 2025:HHC:2268 antecedents shrouding the culprit, the consideration in such cases would be different."
10. A perusal of the status report shows that the victim had made specific allegations against her husband and her father-in-law. She made a general statements against the present petitioners in her statement recorded under Section 164 of Cr.P.C. The police also recorded the statement of her neighbours, who also made general statements without specifying the particulars of the harassment. Keeping in view the fact that no specific allegations have been made against the petitioners, the petitioners are entitled to bail.
11. Consequently, the present petitions are allowed, and the petitioners are ordered to be released on bail in the sum of ₹25,000/- each with one surety each in the like amount to the satisfaction of the learned Trial Court. While on bail, the petitioners will abide by the following terms and conditions: -
(I) The petitioners will not intimidate the witnesses, nor will they influence any evidence in any manner whatsoever;
(II) The petitioners shall attend the trial in case a charge sheet is presented against them and will not seek unnecessary adjournments;
(III) The petitioners will not leave the present address for a continuous period of seven days without furnishing the address of intending a visit to the 14 2025:HHC:2268 SHO, the Police Station concerned and the Trial Court;
(IV) The petitioners will surrender their passport, if any, to the Court; and (V) The petitioners will furnish their mobile number and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/ WhatsApp/ Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.
12. It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.
13. The petitions stand accordingly disposed of. A copy of this order be sent to the Superintendent, Modern Central Jail Kanda, District Shimla and the learned Trial Court by FASTER.
14. The observation made herein before shall remain confined to the disposal of the instant petitions and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 10th January, 2025 (Chander) Digitally signed by KARAN SINGH GULERIA Date: 2025.01.10 13:27:39 IST