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Bimlesh Maan vs State on 7 March, 2022

Author: Talwant Singh

Bench: Talwant Singh

                    $~11
                    *       IN THE HIGH COURT OF DELHI AT NEW DELHI
                    +       BAIL APPLN. 267/2022&CRL.M.A. 1479/2022
                            BIMLESH MAAN                                     ..... Petitioner
                                                Through:   Mr Vijay Aggarwal, Mr. H. Sharma and
                                                           Mr. Shekhar Pathak, Advocates.
                                                versus
                            STATE                                     ..... Respondent
                                                Through:   Ms. Neelam Sharma, APP for the State
                                                           with SI Munna Kumar, PS-Kishangarh.

                            CORAM:
                            HON'BLE MR. JUSTICE TALWANT SINGH
                                    ORDER

                    %               07.03.2022

                    1       This is a petition seeking grant of anticipatory bail to the

petitioner/Bimlesh Maan, who is accused in case FIR No. 360/2021, u/s 307/34 IPC, PS: Kishangarh, dated 18.10.2021.

2. The brief facts mentioned by the petitioner are that her husband Ashok Maan was brutally murdered in broad daylight on 12.02.2020. The nephew of the petitioner Sh. Harendra Maan had witnessed the entire incident and he was also injured.

2.1. Somraj @ Dhami, Davender @ Dev and Kalu had shot dead the husband of the petitioner and in this connection FIR No. 0057/2020 was registered at PS- Kishangarh. Somraj @ Dhami has been released on bail in the said matter while Kalu and Dev are still in jail. The said Somraj @ Dhami, with a view to pressurize Harendra Maan, concocted a false story that when he was returning Signature Not Verified Digitally Signed By:MAMTA RANI Signing Date:16.03.2022BAIL 12:54 APPLN. 267/2022 Page 1 of 10 from Court on 18.10.2021 in his vehicle, he was allegedly accosted by unknown men, who shot multiple rounds on his vehicle but he escaped unhurt in the incident and thereafter he got registered a complaint at PS-Kishangarh on 18.10.2021 implicating nephew of the petitioner, namely, Harendra Maan and his entire family including the petitioner herein.

2.2. The alleged shooters were caught within 24 hours by the Special Cell of Delhi Police and an FIR 0266/2021, in this regard, was registered on 19.10.2021. On the basis of these two FIRs, no substantive offence has been made out against the present petitioner. The complainant, namely, Somraj @ Dhami had earlier approached the petitioner and her relatives, to take back the statements given to the police in exchange for money and the present attempt of lodging the FIR is to stop them from actively pursuing their case against Somraj @ Dhami. 2.3. The family of the petitioner was tortured by the police officials when they were looking for her nephew Harendra Maan. Ultimately, Harendra Maan surrendered before the Court of learned Metropolitan Magistrate on 28.10.2021. However, the police continued searching for the petitioner, who filed an application for grant of anticipatory bail before the learned Additional Sessions Judge (ASJ), Patiala House Court on 24.12.2021. The petitioner was granted interim anticipatory bail till 19.01.2022, with a direction to join the investigation and to extend her cooperation to the investigating agency. 2.4. The petitioner joined the investigation. Her statement was recorded by the Investigating Officer on 06.01.2022. The petitioner also submitted a representation to the Investigating Officer on the same date. Reply was filed by the Investigating Officer to the anticipatory bail moved by the petitioner before Signature Not Verified Digitally Signed By:MAMTA RANI Signing Date:16.03.2022BAIL 12:54 APPLN. 267/2022 Page 2 of 10 the learned ASJ. Learned ASJ dismissed the anticipatory bail by passing an order dated 19.01.2022, which is the impugned order in the present petition. 2.5. As per the petitioner, she has duly cooperated in the investigation of the matter and she is no longer required for investigation, so she deserves to be granted the bail. The alleged incriminating material has already been recovered. 2.6 It is submitted that as per the settled legal prepositions, the petitioner is entitled to grant of anticipatory bail as it does not take away from the police the right to interrogate the petitioner/accused; she has a potent defence which she will be prove during the trial; because custodial interrogation of the petitioner is not required in the present matter; because no purpose will be served by arresting the petitioner as there is no possibility of the petitioner tampering with the evidence or intimidating the witnesses and petitioner deserves to be granted benefit of Section 437(1) proviso, being a women.

2.7. The grounds on which the anticipatory bail has been prayed are that there are infirmities in the order dated 19.01.2022 dismissing the anticipatory bail; the said order was passed without application of mind, without appreciating the contents of the stand of the petitioner; the petitioner has been falsely implicated in the present matter; substantive offence under Section 307 Indian Penal Code, 1860 is not made out against the petitioner and an offence of criminal conspiracy deemed to be established only upon mere suspicion.

3. The status report has been filed on 02.02.2022, in which it is submitted that on 18.10.2021 DD entry 48A was registered at 1257 hours that one Shafiq @ Lucky was found injured due to gun shot at Sadar Bazar Road, Kishangarh and he was taken to the hospital. When SI reached the hospital, he found one Signature Not Verified Digitally Signed By:MAMTA RANI Signing Date:16.03.2022BAIL 12:54 APPLN. 267/2022 Page 3 of 10 eye-witness, namely, Somraj @ Dhami, who stated that he had enmity with one Harender Maan and family. He alongwith his driver was going in his Fortuner Car to attend the Court and while returning to his house at 12:40 PM, 4-5 assailants fired at them and one round hit his driver Shafiq, who was taken to Fortis Hospital. He has suspicion on Sanjay Mehalwat and Harender Maan, so the FIR No. 360/2021 dated 18.10.2021 under Section 307/34 IPC and 25/27 Arms Act was registered at PS Kishangarh.

3.1. Investigation was taken up. During investigation, opinion of the doctor was collected; victim Shafiq was discharged from AIIMS Trauma Centre and he is still in coma. Accused Abhishek @ Mota, Anu, Wazir @ Jhota and Kapil Kumar were arrested in FIR No. 266/2021 dated 19.10.2021 by Special Cell. Two pistols and one Desi Katta along with 50 live cartridges were recovered from them. They had disclosed their involvement in the present case, hence, they were formally arrested and they further disclosed that one Mahindra S/o Dharambir was also involved in the commission of offence, who was also arrested and he also disclosed to be involved in the incident. Being juvenile, he was sent to Observation Home.

3.2. Accused Harender Maan surrendered in the Court and he was formally arrested on 28.10.2021 and he disclosed that he alongwith his Chachi Bimlesh/present petitioner and brother Puneet Maan had hatched the conspiracy to eliminate Dhami Pehlwan to take revenge of murder of Chacha Ashok Maan, who was murdered in February, 2020, and one of the accused Somaraj @ Dhami in that case was released on bail. Accused Puneet Maan was also arrested in the present case, who disclosed the same facts. Accused Manjeet Mahal, who had Signature Not Verified Digitally Signed By:MAMTA RANI Signing Date:16.03.2022BAIL 12:54 APPLN. 267/2022 Page 4 of 10 supplied the arms and persons to kill Somraj @ Dhami was arrested. Later on, one Mukesh @ Pauua, who had arranged the fire arms used in this incident, took back the firearms from the assailants after the incident and destroyed the same, was also arrested. One Ashish @ Bittoo is still at large and proceedings under Section 82 Cr.P.C. initiated against him.

3.3. As per the status report, from interrogation of accused persons Abhishek @ Mota, Anu Giloria, Wazir @ Jhota and Kapil Kumar, it was found that accused Bimlesh Maan w/o Late Ashok Maan wanted to take revenge of her late husband's murder, thus she was involved in the case since beginning. She met the accused persons and provided meals and shelter before the firing incident and asked them to take revenge of her late husband's murder at any cost. The assailants disclosed that they had stayed in Room No. 14 of the house of the present petitioner and her family members and they were provided meals and shelter before the incident of crime. A DVR from the house of the present petitioner was taken and sent to FSL for examination. Many efforts were made to arrest her but she was evading her arrest. Non-bailable warrants were issued on 24.11.2021 against her and since she was continuously evading her arrest so process under Section 82 Cr. P.C. has been initiated.

3.4. During pendency of the anticipatory bail before the learned ASJ, the present petitioner joined the investigation on 06.01.2022 but she did not cooperate and she misled the investigation in this case. Later on, the anticipatory bail was dismissed on 19.01.2022. On 29.01.2022, fresh process under Section 82 Cr. P.C. was obtained from the Court of learned MM for 04.04.2022. The charge-sheet has already been filed against the arrested accused, so it has been Signature Not Verified Digitally Signed By:MAMTA RANI Signing Date:16.03.2022BAIL 12:54 APPLN. 267/2022 Page 5 of 10 submitted that custodial interrogation of the present accused is required to unearth the whole conspiracy.

4. A supplementary status report was filed on 22.02.2022 regarding the DVR of the CCTV, which was submitted to the FSL. The result of the examination is that the CCTV footage from 09.10.2021 to 18.10.2021 could not be found in the retrieved data from the said hard disk.

5. During arguments, learned counsel for the petitioner has reiterated the ground as mentioned above. As per him, the petitioner has nothing to do with the alleged attack on the so-called victim and it is a pressurizing tactics, which has been applied to ensure that the petitioner and her family members do not depose in the case related to brutal murder of her husband.

6. On the other hand, as per the version put up by the learned APP for State, the present petitioner is the main conspirator and she wanted to take revenge of her late husband's murder. Strangely, the footage of the relevant period is missing from DVR of the CCTV installed at the residence of the present petitioner so her custodial interrogation is required to unearth the conspiracy. She has been named in the disclosure statement. It appears that the cameras were intentionally switched off to destroy the evidence of the present petitioner assisting the assailants who have made the disclosure regarding the present petitioner being the Mastermind. In this case, the licensed weapon of the husband of the petitioner could not be recovered.

7. The case in rebuttal is that in the alleged incident of shooting, the said licenced weapon of the husband of the petitioner was not used as the hitmen used their own weapon.

7.1. The petitioner had cooperated with the police and also submitted her detailed version of the events in her representation. Reliance has been placed in the matter of Sushila Dahas v. State 78 (1999) DLT 388 wherein it was held that women would be granted the benefit of the proviso to Section 437 Cr. P.C. As per the dictum of the judgment in the matter of Shakuntala Devi vs. State of U. P. 1986 Cri. L.J. 365 word "may" used in the 1st Proviso to Section 437 (1) Cr. P.C. is to be read as "shall".

8. After hearing both the sides and going through the judgments cited, it is clear that as on date, the only circumstance which emerges against the present petitioner is the disclosure statements of the accused. The prosecution had initially tried to link her with the other accused persons/assailants on the basis of the CCTV footage but now the FSL report has come on record and as per the said FSL report, the CCTV footage for the relevant period is missing. There cannot be a presumption in law that it is the petitioner who had switched off the camera during the relevant period. There is nothing on record even today to pin- point the role of the petitioner in this crime.

9. During the pendency of the anticipatory bail application before the learned ASJ, the petitioner had appeared before the IO and her statement was recorded. Apart from this, she had submitted a detailed representation regarding her version of the events and the fact regarding submission of the representation has not been denied by the State.

10. The counsel for the petitioner has relied upon first proviso to Section 437 (1) of Cr. P.C. and has submitted that the petitioner, being a woman, deserves Signature Not Verified Digitally Signed By:MAMTA RANI Signing Date:16.03.2022BAIL 12:54 APPLN. 267/2022 Page 7 of 10 the benefit of this Section. The proviso of Section 437 Cr. P.C. is reproduced hereunder:

"437. When bail may be taken in case of non-bailable offence (1) When any person accused of, or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court of Sessions, he may be released on bail, but

(i)....................

(ii)...................

Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or a woman or is sick or infirm"

11.In the case of Shakuntala Devi Vs. State of U. P. 1986 Cri. L.J. 365, it was held that:

"14. I am accordingly of the view that the word 'may' has been used in the first proviso to Section 437 of the Code to mean "shall" and 'must'. The expression has been used as mandatory and not as directory. However, as the word 'may' has been used in connection with the right of liberty of the citizen which has been guaranteed as a fundamental right in view of Article 21 of the Constitution (sic). Hence it has assumed more dimension and cannot be taken highly."

12. This Court in the matter of Sushila Dahas v. State 78 (1999) DLT 388 had granted anticipatory bail by invoking the said section of Cr. P.C.

13. It is true that there cannot be any direct evidence of the conspiracy as the same has to be inferred from the prevailing circumstances but there has to be some evidence on record to connect the present petitioner with the assailants Signature Not Verified Digitally Signed By:MAMTA RANI Signing Date:16.03.2022BAIL 12:54 APPLN. 267/2022 Page 8 of 10 apart from their own disclosure statements to make out a case of criminal conspiracy.

14. It is premature to comment on the merits of the case, however, keeping in view the facts that the petitioner had already appeared before police and had got her statement recorded apart from submitting detailed representation and she being a woman, so she is also entitled to the benefit of anticipatory bail under first proviso to Section 437 (1) Cr. P.C.

15. I am inclined to grant anticipatory bail to petitioner on the following conditions:

(i) The petitioner shall appear before the Investigation Officer as and when she is called for;

(ii) The petitioner shall cooperate with the police officials and in case of her non-cooperation, the police officials are at liberty to move an application for cancellation of the anticipatory bail granted to her;

(iii) The petitioner shall furnish her mobile number to the police and keep the GPS location always on of the said mobile phone;

(iv) The petitioner shall not contact/threaten the complainant/witnesses in the present matter;

(v) The petitioner shall not leave territorial jurisdiction of this Court without permission of the concerned Court;

(vi) In the event of arrest, she will be released on bail on execution of personal bond in the sum of Rs.50,000/- with two sureties of like amount to the satisfaction of the concerned SHO/IO.

16. The application is accordingly allowed and disposed of in the above terms.

TALWANT SINGH, J MARCH 7, 2022/mr Click here to check corrigendum, if any Signature Not Verified Digitally Signed By:MAMTA RANI Signing Date:16.03.2022BAIL 12:54 APPLN. 267/2022 Page 10 of 10