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Himachal Pradesh High Court · body

2014 DIGILAW 1425 (HP)

Sarvjeet v. State of Himachal Pradesh

2014-10-15

Tarlok Singh Chauhan

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JUDGMENT Tarlok Singh Chauhan J. (Oral). The petitioner has claimed bail in case FIR No. 139 of 2013, registered at Police Station Indora, District Kangra on 13.7.2013 under Sections 452, 307, 498-A, 506 and 323 IPC. 2. The respondent has produced the records of the FIR and has also filed status report. 3. The prosecution story appears to be that the complainant was at home on 13.7.2013 at Mand Miyani and except her Bhabi Sukhwinder Kaur there was none else at home. At about 2-2.30 P.M., the petitioner along with his younger brother came to the house and threatened her to take back the case filed by her in the Court and thereafter the petitioner snatched her dupatta and tried to strangulate her. It is on the basis of such complaint that the FIR came to be lodged. 4. The records reveal that the complainant and the petitioner are litigating with each other and therefore, the accusation leveled against the petitioner cannot be taken on their face value and have to be tested during the course of trial. Ms.Meenakshi Sharma, Additional Advocate General would contend that this is a very serious case, since not only that the petitioner is accused of having committed an offence under Section 498-A, but is further accused of having committed offence under Section 307 IPC. Both these offences and the complexity of the petitioner would only be tested during the course of regular trial, more particularly in view of the fact that as per the medical evidence, it has been opined that the injuries on the person of the petitioner are only simple in nature. 5. In so far as Section 498-A of IPC is concerned, of late such kind of cases have been flooding the Courts as was recently noticed by the Hon’ble Supreme Court in Amesh Kumar Vs. State of Bihar and another, JT 2014 (7) SC 527 in the following terms:- “6. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. There is phenomenal increase in matrimonial disputes in recent years. The institution of marriage is greatly revered in this country. Section 498-A of the IPC was introduced with avowed object to combat the menace of harassment to a woman at the hands of her husband and his relatives. The fact that Section 498-A is a cognizable and nonbailable offence has lent it a dubious place of pride amongst the provisions that are used as weapons rather than shield by disgruntled wives. The simplest way to harass is to get the husband and his relatives arrested under this provision. In a quite number of cases, bed-ridden grand-fathers and grand-mothers of the husbands, their sisters living abroad for decades are arrested. “Crime in India 2012 Statistics” published by National Crime Records Bureau, Ministry of Home Affairs shows arrest of 1,97,762 persons all over India during the year 2012 for offence under Section 498-A of the IPC, 9.4% more than the year 2011. Nearly a quarter of those arrested under this provision in 2012 were women i.e. 47,951 which depicts that mothers and sisters of the husbands were liberally included in their arrest net. Its share in 6% out of the total persons arrested under the crimes committed under Indian Penal Code. It accounts for 4.5% of total crimes committed under different sections of penal code, more than any other crimes excepting theft and hurt. The rate of charge sheeting in cases under Section 498A, IPC is as high as 93.6%, while the conviction rate is only 15%, which is lowest across all heads. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal”. It is thereafter that the following directions came to be passed. “13 Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. As many as 3,72,706 cases are pending trial of which on current estimate, nearly 3,17,000 are likely to result in acquittal”. It is thereafter that the following directions came to be passed. “13 Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorize detention casually and mechanically. In order to ensure what we have observed above, we give the following direction: (1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498-A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C.; (2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii); (3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention; (4) The Magistrate while authorizing detention of the accused shall peruse the report furnished by the police officer in terms of aforesaid only after recording its satisfactions, the Magistrate will authorize detention; (5) The decision not to arrest an accused be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police to the district for the reasons to be recorded in writing; (6) Notice of appearance in terms of Section 41A of Cr.P.C be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing; (7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction; (8) Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court”. 6. It cannot be denied that arrest brings humiliation, curtails freedom and cast scars forever. No arrest can be made in a routine manner on the mere allegation of commission of offence made against a person. 6. It cannot be denied that arrest brings humiliation, curtails freedom and cast scars forever. No arrest can be made in a routine manner on the mere allegation of commission of offence made against a person. Not only this, the Courts cannot encourage pretrial prolonged detention, as the very purpose of detaining any person in custody is to help in the investigation and by no means can it be with intent to punish the accused, that too without trial. The purpose of granting bail is otherwise to secure the presence of the accused during the course of trial and in case there are no allegations that the petitioner would temper with the prosecution evidence or disassociate the witnesses in any manner, there normally should be no impediment in granting bail. 7. In the present case save and except for alleging that the petitioner is accused of having committed serious offence attracting the applicability of not only Section 498-A, but offence under Section 307 IPC, there is no other ground on which the bail application has been opposed. The complexity of the accused with regard to the commission of the aforesaid offences, as observed earlier, can only be established in a regular trial and on mere apprehension the petitioner cannot be indefinitely kept in detention. 8. Therefore, this is a fit case where discretion of bail ought to be granted, particularly when the petitioner is a permanent resident of District Hoshiarpur in Punjab and presumed to be having roots in the society. 8. Therefore, this is a fit case where discretion of bail ought to be granted, particularly when the petitioner is a permanent resident of District Hoshiarpur in Punjab and presumed to be having roots in the society. Accordingly the present petition is allowed and the petitioner is ordered to be released on bail in FIR No. 139 of 2013, dated 13.7.2013, registered at Police Station, Indora, District Kangra, H.P. under Sections 452, 307, 498-A, 506 and 323 IPC on his furnishing personal bond in the sum of `50,000/- with two sureties of the like amount to the satisfaction of Judicial Magistrate Ist Class, Indora, District Kangra, H.P. with the following conditions:- (i) That the petitioner shall not, directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; (ii) that the petitioner shall not tamper with the prosecution evidence or threaten the witnesses; (iii) that the petitioner shall make himself available for interrogation by the police officer as and when required; (iv) that the petitioner shall not misuse his liberty in any manner. Learned Judicial Magistrate Ist Class, Indora is directed to comply with the directions issued by the High Court, vide communication No. HHC/VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013. 9. It is made clear that the observations made in this order are solely for the purpose of deciding the present bail application and shall not be read or referred to at the time of trial or at any later stage.