Himachal Pradesh High Court
Date Of Decision: 30.07.2024 vs State Of Himachal Pradesh on 30 July, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:6107
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP(M) No.1408 of 2024
Date of Decision: 30.07.2024
.
________________________________________________________________
Bimla Devi ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
________________________________________________________________
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
________________________________________________________________
For the petitioner: Mr. Arjun Lal, Advocate, vice Mr. Maan
Singh, Advocate.
For the respondent: Mr. Rajan Kahol, Mr. Vishal Panwar
and Mr. B.C. Verma, Additional
r Advocates General with Mr. Ravi
Chauhan, Deputy Advocate General.
________________________________________________________________
Sandeep Sharma, J. (Oral)
Bail petitioner, namely Bimla Devi, who is behind the bars since 05.03.2023, has approached this Court in the instant proceedings filed under Section 439 Cr.P.C., for grant of regular bail in case FIR No.31 dated 05.03.2023, under Section 20 of NDPS Act, registered at Police Station Bhunter, District Kullu, Himachal Pradesh.
2. Respondent/State has filed status report, perusal whereof reveals that on 05.03.2023, police after having received secret information that one lady namely Bimla Devi indulges in illegal trade of narcotics and she may sell huge quantity of contraband to some tourist near SBI parking, Bhunter, constituted a Police team, which after having associated 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 01/08/2024 01:02:07 :::CIS2024:HHC:6107 2 independent witnesses apprehended the bail petitioner near parking of SBI Bhunter. Since after having seen the Police, .
petitioner-Bimla Devi got perplexed and attempted to throw one bag, police deemed it necessary to cause her personal search as well as bag, allegedly thrown by her. Allegedly, police recovered 2 kilogram and 508 grams of charas. Since, no plausible explanation came to be rendered on record qua possession of aforesaid commercial quantity of contraband, police completion of necessary codal formalities, registered afore FIR, as detailed hereinabove, and since then, bail-petitioner is behind after bars.
3. Since investigation in the case at hand is complete, petitioner, who is behind bars for more than one year, has approached this Court in the instant proceedings for grant of regular bail on the ground of inordinate delay in conclusion of trial. It has been further argued by learned counsel for the bail petitioner that petitioner is behind the bars for more than one year, but till date, only 5 prosecution witnesses, out of 16 have been examined and such, considerable time is likely to be consumed in the conclusion of the trial.
4. Mr. Vishal Panwar, learned Additional Advocate General, while fairly admitting the factum with regard to filing of the Challan in the competent Court of law, contends that though nothing remains to be recovered from the bail petitioner but ::: Downloaded on - 01/08/2024 01:02:07 :::CIS 2024:HHC:6107 3 keeping in view the gravity of the offence alleged to have been committed by her, she does not deserve any leniency and prayer .
made on her behalf for grant of bail deserves outright rejection.
While referring to status report, Mr. Panwar states that commercial quantity of contraband was recovered from the conscious possession of bail-petitioner and as such, provision of Section 37 of the NDPS Act are attracted, which bars Court from granting bail in the cases involving commercial quantity. He further states that prayer made on behalf of the petitioner to enlarge her on bail, on account of inordinate delay during trial can be rejected taking note of the fact that out of 16 prosecution witnesses, 5 already stand examined and for evidence of remaining prosecution witnesses, learned trial Court has already fixed the matter for 02.08.2024. Mr. Panwar further states that though there is nothing on record to suggest that in past, petitioner had been indulging in the trade of narcotics, but having taken note of quantity of contraband came to be recovered from her conscious possession, on the date of alleged incident, it can be safely presumed that she is a drug peddler and in the event of her being enlarged on bail, she may not only flee from justice, but may again indulge in these activities.
5. Having heard learned counsel for the parties and perused the material available on record, this Court finds that commercial quantity of contraband was recovered from the bag, ::: Downloaded on - 01/08/2024 01:02:07 :::CIS 2024:HHC:6107 4 allegedly thrown by the petitioner, after seeing Police in the presence of independent witnesses and as such, this Court is not .
persuaded to agree with Mr. Arjun Lal, learned counsel for the petitioner that bail-petitioner has been falsely implicated in the present case.
6. No doubt, rigours of Section 37 of the Act are attracted, but bare perusal of provisions contained under Section 37 nowhere suggests that no bail can be granted in cases involving commercial quantity, rather in such cases, Court after affording due opportunity of hearing to public prosecutor can proceed to grant bail, if it is satisfied that the bail petitioner has been falsely implicated and in the event of bail he/she will not indulge in such activities again. In the case at hand, at present, there is nothing to suggest that bail-petitioner has been falsely implicated, but same time, there is nothing on record to suggest that in the event of petitioner being enlarged on bail, she may again indulge in these activities, especially when no case in past has been registered against her.
7. Leaving everything aside, this Court cannot lose sight of the fact that bail-petitioner is behind bars for more than one year and till today, prosecution has been able to examine only five prosecution witnesses, out of 16 prosecution witnesses.
Though, status report reveals that for recording the statement of remaining witnesses, Court below has fixed the matter for ::: Downloaded on - 01/08/2024 01:02:07 :::CIS 2024:HHC:6107 5 02.08.2024, but since, it took more than one year for prosecution to examine five witnesses, this Court can well presume that .
considerable time is likely to be consumed in conclusion of trial and in case, petitioner is left to incarcerate for indefinite period during trial, that would amount to pretrial conviction, which is otherwise not permissible in law.
8. By now, it is well settled that speedy trial is legal right of the accused and one cannot be made to suffer indefinitely for delay in trial and as such, this Court sees no reason to keep the bail petitioner behind the bars for indefinite period during trial. Delay in trial has been held to be in violation of the right guaranteed under Article 21 of Constitution of India. Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731, relevant para whereof has been reproduced herein below:-
"11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999)
9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC
569)."
9. Hon'ble Apex Court having taken note of inordinate delay in conclusion of trial in similar facts ordered for ::: Downloaded on - 01/08/2024 01:02:07 :::CIS 2024:HHC:6107 6 enlargement of accused on bail in Nitish Adhikary @ Bapan v.
The State of West Bengal, Special Leave to Appeal (Crl.) No. .
5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v.
Union Territory of Jammu and Kashmir, Special Leave to Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, who were also framed under Narcotic Drugs and Psychotropic Substances Act and were behind the bars for approximately two years and
10.
r to there was no likelihood of conclusion of trial in near future, subject to certain conditions.
Placing reliance upon aforesaid judgments, a Co-
ordinate Bench of this Court in CrMP(M) No. 1328 of 2022 titled Roop Singh v. State of Himachal Pradesh, decided on 6.9.2022, also ordered for enlargement of an accused, who was allegedly apprehended carrying commercial quantity of Tramadol, on the ground of delay in conclusion of trial.
11. Apart from above judgment, Co-ordinate Bench of this Court while granting bail vide order dated 22.3.2021 in CrMP(M) No. 35 of 2021 titled Ajay Singh v. State of Himachal Pradesh, also placed reliance upon a judgment delivered by a three-Judge Bench in Cr. Appeal No. 668 of 2020 titled Amrit Singh Moni v. State of Himachal Pradesh, decided on 12.10.2020, wherein petitioner was allegedly found in possession of 3285 grams of charas from a vehicle, wherein four other persons were sitting.
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12. Learned Counsel appearing for the petitioner, to substantiate his plea for enlarging the petitioner on bail, has .
referred order dated 12.10.20220 passed by a three judges Bench of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled Amrit Singh Moni v. State of Himachal Pradesh, whereby petitioner therein, facing trial for recovery of 3.285 kilograms charas from a vehicle, alongwith four other persons, was enlarged on bail, for having been in detention for 2 years and 7 months, as till then out of 14 witnesses, 7 witnesses were yet to be examined and last witness was examined in February, 2020 and, thereafter, there as no further progress in the trial.
13. Learned Additional Advocate General, referring to judgment of a three Judges Bench of Supreme Court, passed on 19.7.2022 in Narcotics Control Bureau v. Mohit Aggarwal contends that period of detention cannot be a ground for enlarging the petitioner on bail.
14. The learned Counsel appearing for the petitioner submits that in Mohit Aggarwal, huge commercial quantity of 20 kilograms of Tramadol, against minimum commercial quantity of 250 grams, was recovered, whereas, in the present case, the recovered quantity is little more than the commercial quantity.
15. In similar circumstances, in CrMP(M) No. 1255 of 2022, titled Puran Chand v. State of Himachal Pradesh, decided on 28.7.2022, another Co-ordinate Bench of this Court, ::: Downloaded on - 01/08/2024 01:02:07 :::CIS 2024:HHC:6107 8 having taken note of inordinate delay in conclusion of trial, ordered enlargement on bail of the person, who was apprehended .
with 1.996 kg of charas.
16. Recently, Hon'ble Apex Court in Javed Gulam Nabi Shaikh Vs. State of Maharashtra and Another, Criminal Appeal No.2787 of 2024, decided on 03.07.2024, adversely commented upon the approach of trial Court as well as High Court while considering the prayer for grant of bail. In the aforesaid judgment, Hon'ble Supreme Court having taken note of the fact that appellant in that case was in jail for last four years and Court till that date was not able to frame charges, proceeded to enlarge accused on bail in a case registered under the provisions of Unlawful Activities (Prevention) Act, 1967. In no uncertain terms, Hon'ble Apex Court in aforesaid judgment held that, however serious a crime may be, an accused has right to speedy trial, as enshrined in Article 21 of the Constitution of India. Relevant Paras of aforesaid judgment are reproduced hereinbelow, which reads as under:
"7. Having heard the learned counsel appearing for the parties and having gone through the materials on record, we are inclined to exercise our discretion in favour of the appellant herein keeping in mind the following aspects:
(i) The appellant is in jail as an under-trial prisoner past four years;
(ii) Till this date, the trial court has not been able to even proceed to frame charge; and ::: Downloaded on - 01/08/2024 01:02:07 :::CIS 2024:HHC:6107 9
(iii) As pointed out by the counsel appearing for the State as well as NIA, the prosecution intends to examine not less than eighty witnesses.
.
8. Having regard to the aforesaid, we wonder by what period of time, the trial will ultimately conclude. Howsoever serious a crime may be, an accused has a right to speedy trial as enshrined under the Constitution of India.
9. Over a period of time, the trial courts and the High Courts have forgotten a very well settled principle of law that bail is not to be withheld as a punishment.
10. In the aforesaid context, we may remind the trial courts and the High Courts of what came to be observed by this Court in Gudikanti Narasimhulu & Ors. v. Public Prosecutor, High Court reported in (1978) 1 SCC 240. We quote:
r "What is often forgotten, and therefore warrants reminder, is the object to keep a person in judicial custody pending trial or disposal of an appeal. Lord Russel, C.J., said [R v. Rose, (1898) 18 Cox] :
"I observe that in this case bail was refused for the prisoner. It cannot be too strongly impressed on the, magistracy of the country that bail is not to be withheld as a punishment, but that the requirements as to bail are merely to secure the attendance of the prisoner at trial."
11. The same principle has been reiterated by this Court in Gurbaksh Singh Sibba v. State of Punjab reported in (1980) 2 SCC 565 that the object of bail is to secure the attendance of the accused at the trial, that 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 and that it is indisputable that bail is not to be withheld as a punishment.
12. Long back, in Hussainara Khatoon v. Home Secy., State of Bihar reported in (1980) 1 SCC 81, this court had declared that the right to speedy trial of offenders facing criminal charges is "implicit in the broad sweep and content of Article 21 as interpreted by this Court". Remarking that a valid ::: Downloaded on - 01/08/2024 01:02:07 :::CIS 2024:HHC:6107 10 procedure under Article 21 is one which contains a procedure that is "reasonable, fair and just" it was held that:
"Now obviously procedure prescribed by law for .
depriving a person of liberty cannot be "reasonable, fair or just"unless that procedure ensures a speedy trial for determination of the guilt of such person.
No procedure which does not ensure a reasonably quick trial can be regarded as "reasonable, fair or just" and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article21. The question which would, however, arise is as to what r would be the consequence if a person accused of an offence is denied speedy trial and is sought to be deprived of his liberty by imprisonment as a result of along delayed trial in violation of his fundamental right under Article 21."
13. The aforesaid observations have resonated, time and again, in several judgments, such as Kadra Pahadiya & Ors. v. State of Bihar reported in (1981) 3 SCC 671 and Abdul Rehman Antulay v. R.S. Nayak reported in (1992) 1 SCC 225.
In the latter the court re-emphasized the right to speedy trial, and further held that an accused, facing prolonged trial, has no option:
"The State or complainant prosecutes him. It is, thus, the obligation of the State or the complainant, as the case maybe, to proceed with the case with reasonable promptitude. Particularly, in this country, where the large majority of accused come from poorer and weaker sections of the society, not versed in the ways of law, where they do not often get competent legal advice, the application of the said rule is wholly inadvisable. Of course, in a given case, if an accused demands speedy trial and yet he is not given one,may be a relevant factor in his favour. But we cannot disentitle an accused from complaining of infringement of his right ::: Downloaded on - 01/08/2024 01:02:07 :::CIS 2024:HHC:6107 11 to speedy trial on the ground that he did not ask for or insist upon a speedy trial."
14. In Mohd Muslim @ Hussain v. State (NCT of Delhi) .
reported in 2023INSC 311, this Court observed as under:
"21. Before parting, it would be important to reflect that laws which impose stringent conditions for grant of bail,may be necessary in public interest; yet, if trials are not concluded in time, the injustice wrecked on the individual is immeasurable. Jails are overcrowded and their living conditions, more often than not, appalling.
According to the Union Home Ministry's response to Parliament, the National Crime Records Bureau had recorded that as on 31stDecember 2021, over 5,54,034 prisoners were lodged in jails against total capacity of r 4,25,069 lakhs in the country. Of these 122,852 were convicts; the rest 4,27,165 were undertrials.
22. The danger of unjust imprisonment, is that inmates are at risk of "prisonisation" a term described by the KeralaHigh Court in A Convict Prisoner v. State reported in 1993Cri LJ 3242, as "a radical transformation" whereby the prisoner:
"loses his identity. He is known by a number. He loses personal possessions. He has no personal relationships. Psychological problems result from loss of freedom,status, possessions, dignity any autonomy of personal life. The inmate culture of prison turns out to be dreadful. The prisoner becomes hostile by ordinary standards. Self- perception changes."
23. There is a further danger of the prisoner turning to crime, "as crime not only turns admirable, but the more professional the crime, more honour is paid to the criminal"(also see Donald Clemmer's 'The Prison Community' published in 1940). Incarceration has further deleterious effects - where the accused belongs to the weakest economic strata: immediate loss of livelihood, and in several cases, scattering of families as well as loss of family bonds and alienation from ::: Downloaded on - 01/08/2024 01:02:07 :::CIS 2024:HHC:6107 12 society. The courts therefore,have to be sensitive to these aspects (because in the event of an acquittal, the loss to the accused is irreparable), and ensure that .
trials - especially in cases, where special laws enact stringent provisions, are taken up and concluded speedily."
15. The requirement of law as being envisaged under Section 19 of the National Investigation Agency Act, 2008 (hereinafter being referred to as "the 2008 Act") mandates that the trial under the Act of any offence by a Special Court shall be held on day-to-day basis on all working days and have precedence over the trial of any other case and Special Courts are to be designated for such an offence by the Central Government in consultation with the Chief Justice of the High Court as contemplated under Section 11 of the 2008.
16. A three-Judge Bench of this Court in Union of India v. K.A. Najeeb reported in (2021) 3 SCC 713] had an occasion to consider the long incarceration and at the same time the effect of Section 43-D(5) of the UAP Act and observed as under : (SCC p. 722, para 17) "17. It is thus clear to us that the presence of statutory restrictions like Section 43-D(5) of the UAPA per se does not oust the ability of the constitutional courts to grant bail on grounds of violation of Part III of the Constitution. Indeed,both the restrictions under a statute as well as the powers exercisable under constitutional jurisdiction can be well harmonised. Whereas at commencement of proceedings,the courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safe-guard against the possibility of provisions like Section 43-D(5) of the UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial."
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17. In the recent decision, Satender Kumar Antil v. Central Bureau of Investigation reported in (2022) 10 SCC 51, prolonged incarceration and inordinate delay engaged the .
attention of the court, which considered the correct approach towards bail, with respect to several enactments, including Section 37 NDPS Act. The court expressed the opinion that Section 436A (which requires inter alia the accused to be enlarged on bail if the trial is not concluded within specified periods) of the Criminal Procedure Code, 1973would apply:
"We do not wish to deal with individual enactments as each special Act has got an objective behind it, followed by the rigour imposed. The general principle governing delay would apply to these categories also. To make it clear, the provision contained in Section 436-A of the r Code would apply to the Special Acts also in the absence of any specific provision. For example, the rigour as provided under Section 37 of the NDPS Act would not come in the way in such a case as we are dealing with the liberty of a person. We do feel that more the rigour, the quicker the adjudication ought to be. After all, in these types of cases number of witnesses would be very less and there may not be any justification for prolonging the trial. Perhaps there is a need to comply with the directions of this Court to expedite the process and also a stricter compliance of Section 309 of the Code."
18. Criminals are not born out but made. The human potential in everyone is good and so, never write off any criminal as beyond redemption. This humanist fundamental is often missed when dealing with delinquents,juvenile and adult. Indeed, every saint has a past and every sinner a future. When a crime is committed, a variety of factors is responsible for making the offender commit the crime. Those factors may be social and economic, maybe, the result of value erosion or parental neglect; may be, because of the stress of circumstances, or the manifestation of temptations in a milieu of affluence contrasted with indigence or other privations.
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19. If the State or any prosecuting agency including the court concerned has no wherewithal to provide or protect the fundamental right of an accused to have a speedy trial as .
enshrined under Article 21 of the Constitution then the State or any other prosecuting agency should not oppose the plea for bail on the ground that the crime committed is serious. Article 21 of the Constitution applies irrespective of the nature of the crime."
17. Hon'ble Apex Court as well as this Court in catena of cases have repeatedly held that one is deemed to be innocent till the time guilt, if any, of his/her is not proved in accordance with law. In the case at hand also, guilt, if any, of the accused is yet to be proved in accordance with law, by leading cogent and convincing material on record and as such, her incarceration for indefinite period is clear cut violation of Fundamental Right granted under Article 21 of the Constitution of India.
Apprehension expressed by the learned Additional Advocate General that in the event of petitioner's being enlarged on bail, she may flee from justice, can be best met by putting the bail petitioner to stringent conditions as has been fairly stated by the learned counsel for the petitioner.
18. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble ::: Downloaded on - 01/08/2024 01:02:07 :::CIS 2024:HHC:6107 15 Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.
.
19. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that 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.
20. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in 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 also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
21. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid ::: Downloaded on - 01/08/2024 01:02:07 :::CIS 2024:HHC:6107 16 down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of .
accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.
22. There is another aspect to the matter, in the case at hand, as per status report, petitioner was arrested on 05.03.2023 at 8:30 p.m., meaning thereby, arrest of the petitioner was admittedly after the sunset. At this stage, it would be apt to take note of Sections 46(4) and 60-A of Cr.P.C., which reads as under:
"Section 46(4) in The Code of Criminal Procedure, 1973
-(4)[Save in exceptional circumstances, no woman shall be arrested after sunset and before sunrise, and where such exceptional circumstances exist, the woman police officer shall, by making a written report, obtain the prior permission of the Judicial Magistrate of the first class within whose local jurisdiction the offence is committed or the arrest is to be made.] [Inserted by Act 25 of 2005, Section 6 (w.e.f. 23.6.2006).] *** *** *** 60A. [ Arrest to be made strictly according to the Code [Inserted by the Code of Criminal Procedure (Amendment) Act, 2008 (5 of 2009), Section 10.]
-No arrest shall be made except in accordance with the provisions of this Code or any other law for the time being in force providing for arrest.]"
23. Section 46(4) of Cr.P.C. clearly provides that save in exceptional circumstances, no woman shall be arrested after sunset or before sunrise and where such exceptional circumstances exist, the Woman Police Officer shall, by making a ::: Downloaded on - 01/08/2024 01:02:07 :::CIS 2024:HHC:6107 17 written report, obtain the prior permission of the Judicial Magistrate of the First Class. Interestingly, in the case at hand, .
no exceptional circumstances ever came to be recorded nor permission, if any, was ever taken from the Judicial Magistrate, under whose local jurisdiction, the offence was committed.
Section 60-A of Cr.P.C. clearly provides that no arrest shall be made except in accordance with the provisions of Cr.P.C. or any other law for the time being in force providing for arrest. Meaning thereby, in the present case, arrest of the petitioner after sunset is otherwise wholly impermissible.
24. In similar facts and circumstances of the case, High Court of Bombay in case titled as Kavita Manikikar of Mumbai Vs. Central Bureau of Investigation, 2018 SCC OnLine Bom 1095, held as under:
"23. The observation of the learned Special Judge, as regards presence of the Lady Inspector at the time of arrest, however, did not find any mention in the Arrest-cum-Personal Search Memo dated 20.02.2018. The learned Special Judge has concluded that since the petitioner was present in the office of the CBI along with husband, there was no breach of Section 46(4) of the Code. The learned Judge has failed to take into consideration the mandate of Section 46(4) of the Code and has erred in making the observation that there is no violation of provision of Section 46(4). Section 60-A of the Code makes it imperative that no arrest shall be made except in accordance with the provisions of this Code. Resultantly, any arrest which is made in violation of provisions contained in the Code shall be liable to be termed as not in accordance with the Code and thus, illegal. Where a statute mandates that no woman shall be ::: Downloaded on - 01/08/2024 01:02:07 :::CIS 2024:HHC:6107 18 arrested after sunset and before sunrise and the arrest of a person when she is a woman has to be made by police officer, who is a female, the provisions of the statute cannot be simply .
ignored.
24. Perusal of the affidavit-in-reply filed by the CBI clearly reveals that the petitioner was present in the office of CBI from 15 : 15 hrs. However, from the affidavit as well as Arrest-cum- Personal Search Memo, it is clear that the arrest came to be effected at 20 : 00 hrs. Section 46(4) contemplates that while making arrest, the police officer or the person making the same shall actually touch or confine the body of the person to be arrested and in case of a female, it shall be necessarily done by a female police officer since there is apprehension that the male police officer might touch the person of a woman while making arrest. The contention of the learned counsel for the respondent-CBI that she was already in custody and being confined to the jurisdiction of the CBI, formal arrest being effected at 20 : 00 hrs. would not vitiate the said arrest; do not appear to be correct approach in the light of settled legal position.
25. Perusal of Section 46(4) would make it amply clear that it mandates that no woman shall be arrested after sunset and before sunrise, save in exceptional circumstances when prior permission of Judicial Magistrate First Class in whose legal jurisdiction the offence is committed or arrest is to be made. Thus, it is clear that no woman shall be arrested beyond the prescribed schedule of time and where in exceptional circumstances, by Lady Police Officer by making a written report and obtaining permission from the Judicial Magistrate First Class. Mandate of Sub-section (4) of Section 46 is two fold. The said Section sets out that no woman be arrested after sunset and before sunrise and in the exceptional circumstances, she may be so arrested on a Lady Police Officer making a report and obtaining permission of the Judicial Magistrate First Class for effecting such an arrest."
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25. In view of the aforesaid discussion as well as law laid down by the Hon'ble Apex Court, petitioner has carved out a case .
for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to her furnishing personal bond in the sum of Rs.2,00,000/- with two local sureties in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:
r to
(a) She shall make herself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
(b) She shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) She shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) She shall not leave the territory of India without the prior permission of the Court.
26. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon her, the investigating agency shall be free to move this Court for cancellation of the bail.
27. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petition stands accordingly disposed of.
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28. The petitioner is permitted to produce copy of the order downloaded from the High Court Website and the trial .
court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
(Sandeep Sharma)
Judge
30th July, 2024
(Rajeev Raturi)
r to
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