CRMPM/2654/2022 of BHURA Vs STATE OF HP THROUGH SECRETARY on 30 December 2022

IN THE HIGH COURT OF HIMACHAL PRADESHSHIMLA

Cr.MP(M) No. 2654 of 2022.

Reserved on: 26th December, 2022. Decided on : 30th December, 2022.

Bhura

...Petitioner.

Versus

State of H.P. ....Respondent.Coram:

The Hon’ble Mr. Justice Satyen Vaidya, Judge.

Whether approved for reporting?[1] Yes.

Satyen Vaidya, Judge.

Petitioner is accused of commission of offencesunder Sections 302, 201 and 120-B of the IPC. The casewas registered against the petitioner and another videFIR No. 124 of 2021, dated 24.09.2021 at Police StationTissa, District Chamba, H.P.

1 Whether reporters of the local papers may be allowed to see the judgment?

2. Petitioner is facing trial before the learned Additional Sessions Judge, Chamba. Prosecutionevidence is in the process of being recorded.

3. Allegations against the petitioner and her co- accused are that they caused death of husband ofpetitioner named Shri Mohammad Rafi and her threeminor children. It is alleged that during the interveningnight of 13/14 September, 2021, petitioner with her co-accused firstly assaulted deceased Shri Mohammad Rafiwith a sharp edged weapon and thereafter flamed thehouse to fire in which said Shri Mohammad Rafi alongwith three minor children were sleeping. Shri MohammadRafi and his children died of burn injuries and asphyxia. 4.Petitioner has prayed for grant of bail on theground that she is innocent and has committed nooffence much less the offence as alleged against her. Ithas been contended on behalf of petitioner that she hadno motive to cause the death of her entire family. The incident has been alleged to be caused by accident in which the petitioner is also stated to have received burn injury. It is further submitted that the mother ofdeceased has been examined during trial as PW-1 andshe has not implicated the petitioner in any manner. It isfurther stated that the petitioner is in custody for the lastmore than one year and deserves to be released on bail,especially being a woman.

5. Prayer of the petitioner has been opposed bylearned Additional Advocate General on the ground that Prayer of the petitioner has been opposed by there is sufficient material on record to suggest theexistence of prima facie case against the petitioner. Ithas further been contended that keeping in view theseriousness and gravity of allegations against thepetitioner, she does not deserve any leniency.

6. I have heard learned counsel for the partiesand have also gone through the entire record carefully.

7. Undoubtedly, the allegations against thepetitioner are very serious. She is accused of a veryheinous crime. It is alleged against the petitioner thatshe caused the death of her husband as well as threeminor children by entering into a criminal conspiracy withher co-accused.

8. Though, at the stage of deciding the petitionfor bail, this Court will not venture into scanning ofminute details of prosecution case, still the material onrecord can always be looked into for the purpose ofassessing gravity and seriousness of allegations. Learnedtrial Court has already framed charges against thepetitioner for commission of offences under Sections 302,201 and 120-B of the IPC, after application of mind. Theorder passed by learned trial Court, whereby theexistence of prima facie case was held against thepetitioner was never assailed by the petitioner. In this view of the matter, there is no difficulty to hold that there exists prima facie material against the petitioner.

9. It is revealed from the status report filed onbehalf of the respondent that only minor burn injurieswere found on the hands of the petitioner. It is the caseof the prosecution that petitioner was also the occupantof the same house which was gutted in fire causing deathof four human beings. It is incomprehensible thatpetitioner could escape with just minor burn injuries onher hands, when her three minor children were gaspingfor breath. It is not believable petitioner would not makeefforts to save her minor children from the fire and whiledoing so would escape only with minor injuries.

10. Seriousness and gravity of allegations andexistence of prima facie material therefor is sufficient toreject the prayer of the petitioner for grant of bail. Theoffences, if proved against the petitioner, may attractseverest of the punishment under the Indian Penal Code.

Seriousness and gravity of allegations and

11. Prosecution evidence is at initial stage and material witnesses are yet to be examined. Thepossibility of petitioner influencing the prosecutionwitnesses cannot be ruled out, keeping in view theconduct attributed to her.

12. On earlier occasion also petitioner hadapproached this Court with similar prayer, however, thelearned counsel for the petitioner after arguing for sometime had sought permission to withdraw the petition withliberty to file fresh. The permission was granted to himwith liberty as prayed vide order dated 25.02.2022passed by this Court in Cr.MP(M) No. 149 of 2022.13.It is trite that successive bail applications underSection 439 of the Cr.P.C. in the same FIR are notmaintainable unless some changed circumstance isshown. Otherwise, exercise of jurisdiction to entertainthe successive bail applications amount to review ofprevious order of the same Court, which is not permissible as held by Hon'ble Supreme Court in HariSingh Man vs. Harbhajan Singh Bajwa and others,(2001)1 SCC 169.

14. Evidently, earlier bail application was

withdrawn on behalf of the petitioner, as the court wasnot inclined to accept the prayer for bail. In suchcircumstance, it cannot be said that the bar to filesuccessive bail applications under Section 439 of theCr.P.C., will not apply in the case. No change incircumstances has been shown by the petitioner. Merelybecause few prosecution witnesses have been examinedand one of them had allegedly not supported theprosecution case cannot be said to be changedcircumstance.

15. In the light of the above discussion, it he heldthat there is no merit in the petition and the same isaccordingly dismissed.

16. However, it is made clear that the observationsmade hereinabove shall have no bearings on the merit ofthe case and shall be construed for the disposal of thepresent petition only.

30[th] December, 2022. (jai)

(Satyen Vaidya)Judge