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Himachal Pradesh High Court · body

2014 DIGILAW 1440 (HP)

Simran Likhari v. State of H. P.

2014-10-16

TARLOK SINGH CHAUHAN

body2014
Judgment Tarlok Singh Chauhan, J. The petitioner has approached this Court for grant of pre-arrest bail in case FIR No.88/14, registered at Police Station, East, Shimla on 19.7.2014, under Sections 498-A, and 406 IPC. The petitioner alleges to be a victim of gross persecution and harassment being meted out on the hands of the complainant, who is a daughter in law for wholly vexatious and extraneous considerations. The husband of the petitioner is a retired Army Officer, while the petitioner herself retired as a Teacher from well reputed School at Chandigarh. 2. The petitioner has only one son, who is married to the complainant. It is alleged that the complainant left her matrimonial home in January, 2013 and being a Lawyer, started her practice in Shimla. It is claimed that the petitioner made several attempts to get back the complainant to Chandigarh to resume his matrimonial life in a manner but to no avail. Thereafter, a number of litigations have sprouted up amongst the parties and one of such is the subject matter of this bail application. 3. The records of the prosecution reveal that there are a number of litigations inter-se the parties, since the relationship between the spouses and their family members have turned not only sour but bitter. Undisputedly, the offences under Section 498-A are on the rise, as has also been noticed by the Hon’ble Supreme Court in Arnesh Kumar v. State of Bihar & Anr. JT 2014(7) SC 527, wherein the Hon’ble Supreme Court observed as follows:- “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. The fact that Section 498-A is a congnizable and non-bailable 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 grandmothers of the husbands, their sisters living abroad for decades are arrested. 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 grandmothers 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 is 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.” After taking into consideration sudden rise of such cases, the Hon’ble Supreme Court then issued the following directions:- “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. 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.PC; (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 aforesaid and only after recording its satisfaction, the Magistrate will authorise 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 of the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing; (6) Notice of appearance in terms of Section 41A of Cr.PC 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.” 4. It cannot be disputed that arrest bring humiliation, curtails freedom and cast scars for ever and, therefore, until and unless it is absolutely incumbent and essential that a person be arrested, the Investigating Agency cannot be permitted to claim custody and deprive a citizen of his liberty only on the ground that certain recoveries are required to be effected. It cannot be disputed that arrest bring humiliation, curtails freedom and cast scars for ever and, therefore, until and unless it is absolutely incumbent and essential that a person be arrested, the Investigating Agency cannot be permitted to claim custody and deprive a citizen of his liberty only on the ground that certain recoveries are required to be effected. The learned Additional Advocate General would then ultimately argued that this case was serious one and the application for grant of bail to the petitioner had already been rejected by the learned Sessions Judge, Shimla by passing a detailed order and since there was no changed circumstances, that she ought not to be released on bail. 5. To buttress the submissions, Shri Verma relied upon the judgment of the Hon’ble Supreme Court in State of Maharashtra v. Captain Buddhikota Subha Rao, AIR 1989 Supreme Court 2292, wherein the Hon’ble Supreme Court asserted that successive bail applications cannot be entertained unless there is any substantial change in the fact situation necessitating the release of the accused on bail. He has further relied upon another judgment of the Hon’ble Supreme Court rendered in Kalyan Chandra Sarkar versus Rajesh Ranjan Alias Pappu Yadav and another (2004)7 Supreme Court Cases 528, wherein it has been held that while granting bail, the Court is required to consider the reasons and grounds on which the earlier bail applications were rejected and record the fresh grounds which now persuaded it to take a view different from the one taken in the earlier applications. There can be no quarrel with the exposition of law laid down by the Hon’ble Supreme Court in the aforesaid judgment, but I fail to understand as to how the ratio of the aforesaid judgments is applicable to the fact situation of this case. Admittedly, this Court has not rejected the bail application of the petitioner and if at all it has been rejected it is by the learned Sessions Judge, Shimla. So far as this Court is concerned, it is for the first time that the petitioner has approached this Court. 6. Admittedly, this Court has not rejected the bail application of the petitioner and if at all it has been rejected it is by the learned Sessions Judge, Shimla. So far as this Court is concerned, it is for the first time that the petitioner has approached this Court. 6. I have gone through the order passed by the learned Sessions Judge, who appears to have virtually sat over that the judgment/order passed by the learned Additional District Judge, Chandigarh before whom the parties have got recorded their statements on 22.1.2014 in proceedings under Section 13 B of the Hindu Marriage Act, 1955 to the following effect: “The marriage was solemnized on 18.11.2012 as per Sikh Rites at Chandigarh. Out of this wedlock, no child was born. Now, they are residing separately from each other since 12.1.2013 due to temperamental difference. We are not able to live together and have decided to dissolve the marriage by way of mutual consent. All disputes regarding gift articles, Istridhan, maintenance, permanent alimony etc. have been duly settled. There has been no demand of any permanent alimony maintenance etc. by the petitioner No.2. A decree of mutual divorce may kindly be passed.” 7. Thereafter, these proceedings were withdrawn and a joint statement of the parties was recorded by the learned Additional District Judge, Chandigarh on 21.5.2014. Thus, what appears from the narration of the facts is that because of mutual differences, the very edifice of the marital relationship has been shaken given rise to allegations and counter-allegations between the parties. 8. The petitioner is a permanent resident of Chandigarh and is retired as a Teacher and served in a reputed School while the petitioner’s husband is a retired Army Officer and it is not the case of the prosecution that in the event of being enlarged on bail, in any manner she will jump bail or abscond or not join the investigations. In case that is so, the prosecution is always at liberty to approach this Court for cancellation of bail. Looking into the nature of the accusation against the petitioner, it cannot be assumed that in the event of the petitioner being released on bail, she would tamper with prosecution evidence or disassociate the witnesses. In case that is so, the prosecution is always at liberty to approach this Court for cancellation of bail. Looking into the nature of the accusation against the petitioner, it cannot be assumed that in the event of the petitioner being released on bail, she would tamper with prosecution evidence or disassociate the witnesses. The complicity of the petitioner is yet to be proved while it is admitted that the son of the petitioner, who is co-accused, has already been released on bail by the learned Judicial Magistrate. 9. Accordingly, this is a fit case where the discretion of grant of bail ought to be exercised and accordingly, the bail petition is allowed and the petitioner is ordered to be released on bail in FIR No. 88/14 dated 19.7.2014, registered at Police Station, East, Shimla, under Sections 498-A, and 406 of the Indian Penal Code on her furnishing personal bonds in the sum of Rs.25,000/- each with one surety each of the like amount to the satisfaction of the learned Chief Judicial Magistrate, Shimla, subject to the following conditions: (i) that the petitioners 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 petitioners shall not tamper with the prosecution evidence or threaten the witnesses; (iii) that the petitioners shall make themselves available for interrogation by the police officer as and when required. (iv) that the petitioners shall not misuse their liberty in any manner. Learned Chief Judicial Magistrate, Shimla 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. 10. It is made clear that in case the Investigating Agency wants to interrogate the petitioner, then written Hukamnama to this effect shall be issued to her. It is also made clear that during the investigation the petitioner cannot be unduly harassed. On the other hand, in case the petitioner violates any of the conditions, she will be liable for cancellation of the bail. 11. It is made clear that the observations made in this order are solely for the purpose of deciding the present bail petition and shall not be read or referred to at the time of trial or at any later stage.