Himachal Pradesh High Court
Naman Garg vs State Of Himachal Pradesh on 22 April, 2020
Author: Anoop Chitkara
Bench: Anoop Chitkara
1 IN THE HIGH COURT OF HIMACHAL PRADESH Cr.MP(M) No. 561 of 2020 Reserved on: 22-04-2020 Date of Decision: 22-04-2020 Naman Garg ...Petitioner.
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Versus State of Himachal Pradesh ...Respondent.
Coram:
The Hon'ble Mr. Justice Anoop Chitkara, Judge.
Whether approved for reporting?1 NO.
For the Petitioner: Mr.Nareshwar Singh Chandel, Sr. Advocate appeared through video conference.
For the Respondent: Mr. Nand Lal Thakur, Addl. Advocate General appeared through video conference.
Anoop Chitkara, Judge.
Husband of the deceased, who is under arrest, on being arraigned as an accused in FIR number 0049, registered under Sections 306 read with 34 of IPC, dated 6th April 2020, in Police Station Sadar, Solan, District Solan, HP, disclosing non-bailable offences, has come up under section 439 CrPC, seeking regular bail.
2. While issuing notices to the State, the Court had requested Mr. Nand Lal Thakur, Additional Advocate General to have telephonic instructions in the matter from the concerned Police Station, and to procure status report at the earliest, either through WhatsApp/ e-mail and forward the same to this Court on e-mail id [email protected] and also send the scanned copy or PDF copy of the status report to Mr. Nareshwar Singh Chandel, Sr. Advocate on his WhatsApp number +919418020467.
3. As per the report of the Registry of this Court, Mr. Nand Lal Thakur, Additional Advocate General has e-mailed the copy of 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 22/04/2020 20:22:49 :::HCHP 2FIR, as well as status report through his personal e-mail id [email protected].
4. I have read the status report(s) and heard Mr. Nareshwar Singh Chandel, Sr. Advocate, counsel for the bail petitioner and Mr. Nand Lal Thakur, Additional Advocate General for the State of .
Himachal Pradesh, through video conference call.
5. The petitioner did not file any power of attorney. To contain the spread of Novel Corona Virus, the Epidemiologists have advised to maintain social distancing in the entire world. Consequently, to avoid unnecessary congregation, this Court exempts the petitioner from filing the power of attorney.
6. Mr. Nand Lal Thakur, Ld. Additional Advocate General submits that due to some technical glitch, the official computer system of the office of Advocate General is presently not working and due to the said reason, he posted the e-mail report to this Court through his personal e-mail id. He further submits that he has also sent a copy of the status report to Mr. Nareshwar Singh Chandel, Sr. Advocate, on his WhatsApp number.
6. Prior to the present bail petition, the petitioner had filed a petition under Section 439 CrPC, before Sessions Court, Solan, HP. However, vide order dated 9-4-2020, passed in Bail Application number 38ASJ-II/22 of 2020, Ld. Additional Sessions Judge-II, Solan, dismissed the petition, on the grounds that the offence levelled against the accused was heinous in nature, and there were allegations against the accused doubting character of the deceased, and the police had yet to investigate on this aspect.
FACTS:
7. The gist of the First Information Report and the status report is that on 6th April 2020, at 2.16 a.m. (night time), the Police Post Solan City received a telephonic communication from the Regional Hospital, Solan, that one lady has been brought to the ::: Downloaded on - 22/04/2020 20:22:49 :::HCHP 3 hospital on suspicion of having consumed poison. On this, the police party reached the hospital where they noticed that the victim, Nisha wife of Naman Garg, R/o Upper Bazar, Solan, was under treatment. The Police obtained MLC, and as per the information received from the doctor that they had referred her .
to IGMC Shimla for further treatment. The status report further reveals that the family members of her matrimonial home had taken her to IGMC, Shimla. On 7th April 2020, at 3.55 a.m. (night time), the Police received information from IGMC hospital, Shimla, that Nisha had been brought dead. After that her father, Mr. Sushil Kumar, made a complaint to the Police, in which he alleged that her daughter died due to harassment and cruelty meted out to her by her husband, and her in-laws. He further claimed that on 4th April 2020, her daughter had telephonically asked them to take away her otherwise, they would kill her. The status report also reveals that the deceased had consumed some tablets. The Police recovered the remaining pills and took it into possession after sealing it. It has come in the investigation that the victim had married the accused Naman Garg seven years ago. From the marriage, they had a son, aged five years, who is physically incapacitated and cannot stand on his legs. Apart from this, the said boy is also asthmatic. It further came in the investigation that Naman Garg is an alcoholic and would occasionally beat his wife under the influence of liquor. It further came in the investigation that her mother-in-law Saroj Garg, and brother-in-law Jitin Garg would also intimidate the victim and would quarrel with her to make her agree to all improper demands. The investigation further reveals that two days before the date of suicide, her husband had slapped her, and her mother-in-law and brother-in-law had yelled at her. The Police also took into possession the mobile phone of the deceased, which she had handed over to her mother-in-law. Subsequently the police arrested the petitioner.
PREVIOUS CRIMINAL HISTORY:
::: Downloaded on - 22/04/2020 20:22:49 :::HCHP 48. Mr. Nareshwar Singh Chandel, Sr. Advocate, on instructions received through the bail petitioner, submits that the petitioner has no criminal history.
SUBMISSIONS:
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9. The counsel for the bail petitioner submits that the marriage took place on Jan 19, 2013, that is more than seven years ago, as such Section 113-A of Indian Evidence Act, 1872, is not applicable. The counsel further states that the lady committed suicide due to her own reasons and the accused neither instigated or abetted such suicide. He contends that there is no evidence by way of any complaint or otherwise of cruelty, or beatings, and the absence of suicide note further corroborates this aspect. The counsel further submits that had there been any truth in the allegations in the phone call, then her parents would have called the Police. He further submits that the petitioner Naman Garg reside separately from her mother and brother. He states that he has two children, one aged five years and another six months. Five year old child is suffering from physical incapacitation and it is only the father who is duty bound to take care of children. Learned Senior Advocate further submits that in the post mortem report doctor did not detect any injury, which goes a longway to show that the wife of the petitioner did not commit any suicide because of any cruelty or physical assault.
10. Ld. Additional Advocate General submitted that the accused persons harassed the victim to such an extent that she took her life and there was no other reason for her to commit suicide. He further contends that the lady had called her parents and had asked them to take her away but due to lockdown, to contain the spread of the disease of Covid-19, which is a novel coronavirus, they could not visit her.
ANALYSIS AND REASONING:
11. Pre-trial incarceration needs justification depending upon the heinous nature of the offense, terms of the sentence ::: Downloaded on - 22/04/2020 20:22:49 :::HCHP 5 prescribed in the Statute for such a crime, probability of the accused fleeing from justice, hampering the investigation, and doing away with victim(s) and/or witnesses. The Court is under an obligation to maintain a balance between all stakeholders and safeguard the interests of the victim, accused, society, and State.
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12. The following aspects are relevant to decide the present bail petition:
a) In the status report filed by the Prosecution, there is neither any allegation of demand of dowry nor any motive for abetment or instigation so as to drive her to commit suicide.
b) The petitioner was residing with his wife in a separate accommodation in the same building. Keeping in view the fact that the petitioner has two very young children, one of whom is suffering from serious medical problem, it is the duty of the petitioner to take care of his children.
c) As per the status report the post mortem report does not mention any injury on the deceased which would show that the suicide did not result out of physical assault.
d) The material aspect of the investigation is almost complete and the petitioner is in judicial custody.
e) Marriage had taken place on 19 Jan 2013, that is more than 7 years ago from the date of suicide. Resultantly the presumption of abetment, mentioned under Section 113-A of the Indian Evidence Act, 1872, does not arise.
f) The investigation is going on unhampered.
g) The petitioner/accused, is in judicial custody since 6 th April 2020.
h) Before releasing the petitioner from custody, her/his AADHAR and other proofs of identity would secure presence during trial.
i) The Petitioner has no criminal history.
13. Given the above reasoning, in my considered opinion, the judicial custody of the petitioner is not going to achieve any significant purpose. Thus, the Court is granting bail, subject to the following conditions, irrespective of the contents of the bail bonds:
a) The petitioner shall furnish personal bail bonds to the sum of Rs 50,000/- to the satisfaction of the Sessions Court/ Chief Judicial Magistrate/ Ilaqua Magistrate/ Duty Magistrate.
The Court is dispensing with the requirement of the surety bonds to avoid traveling of persons to furnish the surety, to abide by the lockdown ordered by the Government for the safety of the people, by maintaining social distancing to contain the spread of the COVID-19 disease. After the filing ::: Downloaded on - 22/04/2020 20:22:49 :::HCHP 6 of the Police report under Section 173(2) CrPC, the Court taking cognizance may ask for surety bonds, if it deems appropriate.
b) The bail bonds shall continue to remain in force throughout the trial and even after that in terms of section 437-A of the CrPC.
c) The petitioner shall join investigation as and when .
called by the Investigating officer or any superior officer.
Whenever the investigation takes place within the boundaries of the Police Station or the Police Post, then the petitioner shall not be called before 8 AM and shall be let off before 5 PM. The petitioner shall not be subjected to third-
degree treatment, indecent language etc.
d) The petitioner shall fully co-operate in the investigation and shall not hamper it, in any manner what so ever.
e) The petitioner shall not influence, threaten, browbeat or pressurize the complainant, witnesses, and the Police official(s).
f) The petitioner shall not make any inducement, threat, or promise, directly or indirectly, to the Investigating officer, or any other person acquainted with the facts of the case, to dissuade her from disclosing such facts to the Police, or the Court, or tamper with the evidence.
g) The petitioner shall appear before the trial Court, on issuance of summons/warrant by such Court.
h) There shall be a presumption of proper service to the petitioner about the date of hearing in the trial Court, even if such service takes place through phone/mobile/SMS/WhatsApp/E-Mail/Facebook or any other similar medium, by the trial Court, or by the Prosecution. In case the petitioner does not appear before the trial Court on such date of hearing, then the trial Court may issue bailable warrants, and if the petitioner still fails to put in appearance, then the trial Court may issue Non-Bailable warrants to procure the presence of the petitioner, and send the petitioner to the Judicial custody for the period for which the trial Court may deem fit and proper, without being unduly harsh towards him.
i) The petitioner shall attend the trial on each date, unless exempted.
j) In case of Non-appearance on the intimated date, then irrespective of the contents of the bail bonds, the petitioner undertakes to pay all the expenditure, only the principal amount without interest, that the State might incur in producing him before such Court, provided such amount exceeds the amount recoverable after forfeiture of the bail bonds. The failure of the petitioner to reimburse the State shall entitle the trial Court to order transfer of money from the bank account(s) of the petitioner. However, this recovery is subject to the condition that the expenditure incurred must be only to trace the petitioner and relates to the exercise undertaken solely to nab the petitioner in that FIR, ::: Downloaded on - 22/04/2020 20:22:49 :::HCHP 7 and during that voyage, the Police had not gone for any other purpose/function what so ever.
k) The petitioner shall abstain from all criminal activities, if he does so, then in the fresh FIR, the Court shall take into account that even earlier the Court had cautioned the accused not to repeat the offence.
l) In case the petitioner commits any fresh offence .
during the bail, then he shall intimate the SHO of the present police station, with all the details of the present and the new FIR, within thirty days of the knowledge of such fresh FIR. In such a situation, it shall be open for the State, if it deems fit and proper, to apply to the trial Court, and in case the trial is yet to commence then to this Court, for cancellation of this bail. The trial Court on receipt of such application shall be competent to cancel the bail if it so decides.
m) The petitioner shall surrender all firearms along with ammunitions, if any, and the arms license to the concerned authority within 30 days from today.
n) The petitioner shall inform the SHO about the place of residence during trial. The petitioner shall intimate about the change of residential address, within two weeks from such change, to the police station, and after filing of the Police report also to the trial Court.
o) In case of violation of any of the conditions as stipulated in this order, the State/Public Prosecutor may file an application for cancellation of bail of the petitioner, and even the trial Court shall be competent to cancel the bail.
14. In case the petitioner finds the bail condition(s) as violating fundamental or other rights, including any human right, or faces any other difficulty due to any condition, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, before the Court taking cognizance or the trial Court, as the case may be.
15. The Counsel representing the accused and the Judicial officer accepting the bail bonds, shall explain all conditions of this bail order to the petitioner, in vernacular.
16. The petitioner undertakes to comply with all directions given in this order, and the furnishing of bail bonds by the petitioner is acceptance of all such conditions.
::: Downloaded on - 22/04/2020 20:22:49 :::HCHP 817. Consequently, the petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal bond in the aforesaid terms.
18. The Court executing the personal bonds shall ascertain the identity of the bail-petitioner, his family members, through .
AADHAR Card. The petitioner shall give details of AADHAR Card, phone number(s), WhatsApp number, e-mail, Facebook account, etc., Pan Card and Passport if available, on the reverse page of the personal bonds. The petitioner shall also furnish details of personal bank account.
19. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency, from further investigation, until the filing of the Police report under Section 173(2) CrPC, and after that with permission from the concerned Court.
20. The present bail order is only for the FIR mentioned above. It shall not be a blanket order of bail in all other cases, if any, registered against the petitioner.
21. The SHO/Additional SHO of the concerned Police Station or the Investigating Officer shall send a copy of this order, preferably a soft copy, to the complainant.
22. Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.
23. The petition stands allowed in the terms mentioned above.
24. The Secretary of the Court shall handover this order to the concerned branch of the Registry of this Court, and the said official shall immediately send a copy of this order to the District and Sessions Judge, Solan, by e-mail. The Court attesting the personal bonds shall not insist upon the certified copy of this order, and shall download the same from the website of this Court, which shall be sufficient for the purposes of the record.
::: Downloaded on - 22/04/2020 20:22:49 :::HCHP 925. The Secretary of the Court shall handover an authenticated copy of this order to the Counsel for the Petitioner, and to the Ld. Advocate General, if they ask for the same.
(Anoop Chitkara) 22nd April, 2020. Judge.
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