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2012 DIGILAW 121 (HP)

Dalip Singh v. State of Himachal Pradesh

2012-03-23

V.K.SHARMA

body2012
JUDGEMENT V.K. Sharma, Judge (Oral) The challenge herein in this criminal revision petition under Section 397 read with Section 401 of the Code of Criminal Procedure, 1973 (in short ‘Cr.P.C’), is against the final order dated 26.9.2011, passed by the learned Sessions Judge, Sirmaur District at Nahan, in Bail Application No. 149 BA/22 of 2011, under Section 2 438 Cr.P.C, in a case arising out of FIR No. 223 of 2011, dated 16.7.2011, registered against the petitioner herein, who shall hereinafter be referred to as ‘the accused’, at Police Station Paonta Sahib, District Sirmaur, under Sections 498A, 406 and 506 of the Indian Penal Code (in short ‘IPC’), at the instance of his estranged wife Smt. Amita Sharma (complainant). The case against the petitioner has been registered by the said police pursuant to orders passed by the learned Judicial Magistrate 1st Class, Paonta Sahib, District Sirmaur (H.P), under Section 156(3) Cr.P.C. 2. By an order dated 19.7.2011, the learned Sessions Judge, had admitted the accused to interim pre-arrest bail. The order reads as under:- “19-7-2011 Present:- Bail petitioner with counsel Sh. O.P. Chauhan, Advocate.Shri Ajmer Singh, learned Public Prosecutor for the State of H.P. Office report seen. It be registered. Copy of the application is supplied to the learned Public Prosecutor. For police report, to come up on 30-7-2011. In the meantime, the bail petitioner, in the event of his arrest, be enlarged on bail, on his furnishing personal bail, and surety bonds in the sum of Rs. 15,000/-, to the satisfaction of the investigating Officer. However, the bail petitioner is directed to join investigatiion as and when called by the police.” 3. However, while passing final order dated 26.9.2011, granting pre-arrest bail to the accused, the learned Sessions Judge has imposed a condition in the nature of a direction to the accused to return the aforesaid golden ornaments to the complainant or in the alternative to pay cash equivalent to the value thereof to her. For the sake of convenience, the order is re-produced below in extenso:- “26-9-20 1 1 Present:-Bail applicant with counsel Sh.O.P.Chauhan, Advocate. Shri Ajmer Singh, learned Public Prosecutor for the State of H.P. The Jeweller Nanhe at Chakki Wala, Paonta Sahib is present and, stated that no jewellery items as had been, stated by the complainant, have been pledged by the bail applicant with the aforesaid, had, ever come to be pledged. Shri Ajmer Singh, learned Public Prosecutor for the State of H.P. The Jeweller Nanhe at Chakki Wala, Paonta Sahib is present and, stated that no jewellery items as had been, stated by the complainant, have been pledged by the bail applicant with the aforesaid, had, ever come to be pledged. The bail applicant and the complainant are living separately before the registration of the present case FIR. It appears, that, hence, when at a stage, time before, the registration of the FIR, both were living separately, no demand, of dowry, as alleged against the bail applicant could have been made by the bail applicant aforesaid against the complainant. The main items detailed in the list have been stated to be delivered to the complainant by the bail applicant. However, the complainant seeks retrieval of golden Set ( 5 tola) and Golden Nath (1- 1/2 tola). The aforesaid items, as stated above, asserted by the complainant, have been pledged with Nanhe, yet when the said Nanhe has stated that no such items have been pledged by the bail applicant with him. Even though, the aforesaid Nanhe may not have supported the complainant, and, even if, the bail applicant has not been able to demonstrate, that the aforesaid items have been returned or have been taken by the complainant. Hence, the bail applicant, shall, within six months from today either pay cash equivalent to the aforesaid jewellery items of the complainant or, shall, return the aforesaid jewellery items to the complainant. In case the above said condition, is, not complied with, then, it is open to the learned Public Prosecutor to approach this Court for seeking appropriate directions from this Court. In the light of the aforesaid condition, also, in the light of the further fact that, at this stage, the prosecution has not adduced any evidence demonstrating, that in the event of grant of bail to the bail applicants, they are likely to flee from justice, or tamper with the prosecution evidence, accordingly, indulgence of bail, ought not to be refused. Resultantly, the bail application is allowed, and the orders rendered on 19.7.2011 are made absolute. The application stands allowed, which after due 5 completion be consigned to the record room.” 4. A bare perusal of the above order would go to show that the undisputed items such as furniture articles, household utensils and beddings etc. Resultantly, the bail application is allowed, and the orders rendered on 19.7.2011 are made absolute. The application stands allowed, which after due 5 completion be consigned to the record room.” 4. A bare perusal of the above order would go to show that the undisputed items such as furniture articles, household utensils and beddings etc. mentioned in the list Annexure P-2, attached with the aforesaid order dated 26.9.2011, have since been returned by the accused to the complainant. Insofar as the golden ornaments are concerned the same as per allegations levelled in the complaint had been pledged by the accused with one Nanhe Jeweller at Chakki Wala, Paonta Sahib. However, the said Nanhe, refuted the allegation and as such the allegation which was denied by the accused remained unsubstantiated. In such circumstances, to my mind, to impose a condition of bail in the nature as above, directing the accused to return the disputed golden ornaments or to pay the value thereof appears to be highly unreasonable and cannot be sustained and is accordingly quashed. 5. In view of the above, the petition is allowed and the condition imposed upon the accused in the impugned order dated 26.9.2011, directing him to return golden ornaments mentioned therein to the complainant within six months or to pay the value thereof to her, is quashed. 6. The petition stands disposed of in the above terms.In view of disposal of main petition, pending Cr.MP No. 10 of 2012, shall also stand disposed of.