CRMPM/1510/2017 of RUPA Vs STATE OF HP on 29 December 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr.MP(M) Nos. 1510, 1511, 1512, 1513 and 1514 of 2017 Decided on: 29.12.2017

__________________________________________________________________1.Cr.MP(M) No. 1510 of 2017Rupa ………..Petitioner Versus State of Himachal Pradesh ……….Respondent __________________________________________________________________ 2.Cr.MP(M) No. 1511 of 2017Man Singh ………..Petitioner Versus State of Himachal Pradesh ……….Respondent 3.Cr.MP(M) No. 1512 of 2017Shishi Ram ………..Petitioner Versus State of Himachal Pradesh ……….Respondent 4.Cr.MP(M) No. 1513 of 2017Shiv Bhagti ………..Petitioner Versus State of Himachal Pradesh ……….Respondent 5.Cr.MP(M) No. 1514 of 2017Harish ………..Petitioner Versus State of Himachal Pradesh ……….Respondent

Coram:

Hon’ble Mr. Justice Sandeep Sharma, Judge. Whether approved for reporting? [1] Yes.

For the Petitioner(s) : Mr. Vinay Thakur, Advocate. For the Respondent(s) : Mr. P.M. Negi, Additional Advocate General with Mr. R.K. Sharma, Deputy Advocate General.

__________________________________________________________________

Sandeep Sharma, Judge (oral):

Above captioned bail petitioners apprehending their arrest in case FIR No. 87/17 dated 12.12.2017, under Sections 147, 452 and 306 of IPC, registered at PS Bhabanagar, District Kinnaur, H.P., have approached this Court by way of instant bail petitions filed under Section(s) 438 of the Cr.PC, praying therein for grant of pre-arrest bail.

2. Sequel to order(s) dated 18.12.2017, whereby all the petitioners were ordered to be enlarged on interim bail, ASI Som Dutt, P.S. Bhabanagar, Nichar, District Kinnaur, H.P., has come present along with records. Record perused and returned. Mr. P.M.Negi, learned Additional Advocate General, has also placed on record status report prepared on the basis of investigation carried out by the Investigating agency. 3.Perusal of record/status report suggests that aforesaid FIR came to be registered at the behest of the complainant namely Jawahar Lal i.e. father of the deceased Shankar Deep, who alleged that on 12.12.2017, all the bail petitioners had gathered at the house of a person 1Whether the reporters of the local papers may be allowed to see the judgment?

called Jundap. Since there was some dispute inter-se deceased Shankar Deep and one of the bail petitioner namely Rupa, who allegedly had extramarital affairs with deceased Shankar Deep, family members of Rupa as well as the deceased had come to the house of Jundap to get the matter resolved amicably inter-se them. It emerges from the record/status report that during aforesaid meeting, some allegations and counter allegations were made against each other, as a consequence of which, deceased Shankar Deep consumed poison and ultimately he passed away. Father of the deceased namely Jawahar Lal in his complaint alleged that since his son Shankar Deep was mentally tortured by the bail petitioners, he was compelled to commit suicide and as such, case may be registered against them. On the basis of aforesaid statement made by the complainant under Section 154 of Cr.PC, formal FIR, as mentioned herein above, came to be registered against the present bail petitioners.

4. Mr. Vinay Thakur, learned counsel representing the bail petitioners while inviting attention of this Court to the record/status report vehemently contended that no case is made out against the bail petitioners under Section 306 of IPC because as per own statement of the complainant, deceased Shankar Deep left the meeting in between and went to some room, where he allegedly consumed the poison. Mr.

Thakur further contended that it has nowhere come in the statement of the complainant that bail petitioners humiliated and harassed the deceased, rather an attempt was made by them to persuade the deceased Shankar Deep as well as Rupa to live their life peacefully without causing any disturbance in matrimonial life of Rupa and her husband namely Harish. Mr. Thakur, further contended that there is no iota of evidence collected on record by the Investigating Agency suggestive of the fact that the bail petitioners instigated the deceased to consume poison and as such, they being innocent persons deserve to be enlarged on bail. Lastly, Mr. Thakur, contended that all the petitioners are respected persons of the locality and there is no likelihood of their fleeing from justice and they shall always remain available for investigation as well as trial.

5. Mr. P.M. Negi, learned Additional Advocate General, while opposing the prayer having been made by the learned counsel representing the petitioners contended that keeping in view the fact that one person has lost his life due to the conduct of the bail petitioners, they do not deserve any leniency, rather they need to be dealt with very severely. Mr. Negi fairly admitted that pursuant to direction issued by this Court on 18.12.2017, all the petitioners have joined the investigation and at this stage, nothing is required to be recovered from them. Mr. Negi, fairly conceded that investigation in the case is almost complete save and except call details which are yet to be received. While inviting attention of this Court to the post-mortem report, learned Additional Advocate General contended that it has specifically come in the report that deceased died due to ingestion of poison resulting in the cessation of function of vital organ leading to the death and as such, taking note of peculiar facts and circumstances, involvement of the bail petitioners in the crime allegedly committed by them, cannot be ruled out. Lastly, learned Additional Advocate General contended that in case, this Court intends to enlarge the bail petitioners on bail, they may be put to stringent conditions so that they remain available for investigation and trial.

6. I have heard the learned counsel for the parties and carefully gone through the record.

7. As per record/report submitted by the Investigating Agency, on 12.12.2017, all the petitioners had come to the house of one Jundap, where deceased Shankar and his father namely Jawahar Lal, were also present. Since there was some dispute with regard to extramarital affairs of deceased Shankar deep with lady called Rupa, who happens to be the wife of Harish, all the bail petitioners with a view to get the matter amicably resolved, gathered at the house of Jundap, where unfortunately, deceased Shankar consumed poison.

8. Having perused record, this court finds substantial force in the arguments of Mr. Thakur, that there is no evidence available at this stage suggestive of the fact that at the house of Jundap, deceased Shankar Deep was mentally tortured and harassed by the bail petitioner, rather record reveals that effort was put in by all the petitioners to prevail upon him to live his life peacefully without causing any interference in the marital life of Harish and Rupa. Otherwise also, statement of the complainant Jawahar Lal, nowhere suggests that bail petitioners instigated the deceased to commit suicide. Though, aforesaid aspect of the matter is to be considered and decided by the court below on the basis of evidence, collected on record by the Investigating Agency, but this Court after having perused the record/status report, sees no reason to let the bail petitioners incarcerate in jail for an indefinite period. Moreover, investigation in the case is almost complete and nothing is required to be recovered from the bail petitioners, as has been fairly admitted by the learned Additional Advocate General. Apart from above, no material has been placed on record by the Investigating Agency, from where it can be inferred that in the event of petitioners’ being enlarged on bail, they may flee from justice and shall not remain available for investigation and trial.

9. Needless to say 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, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. 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.

10. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under:-

“ 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 can be required to ensure that an accused person will stand his trial when called upon. The Courts owe 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. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.”

11. In Manoranjana Sinh Alias Gupta versus CBI 2017 (5) SCC

218, The Hon’ble Apex Court has held as under:-

“ This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe 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 found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.”

12. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail; bail;

(v) character, behaviour, means, position and standing of the accused; accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and and

(viii) danger, of course, of justice being thwarted by grant of bail.

13. Consequently, in view of the above, order(s) dated 18.12.2017, passed by this Court, are made absolute, subject to the following conditions:

a.They shall make themselves 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; 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.They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; investigation of the case in any manner whatsoever;

c.They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and d.They shall not leave the territory of India without the prior permission of the Court. the Court.

14. It is clarified that if the petitioners misuse their liberty or

Facts

violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.

15. 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 bail petition(s) stands disposed of accordingly.

Copy dasti.

29[th] December, 2017

manjit

(Sandeep Sharma),Judge