Research › Search › Judgment

Himachal Pradesh High Court · body

2016 DIGILAW 1931 (HP)

Anil Khan v. State of H. P.

2016-09-08

P.S.RANA

body2016
ORDER : P.S. Rana, J. 1. Present petition is filed under Section 439 Code of Criminal Procedure 1973 for grant of bail in FIR No. 162/2015 dated 26.09.2015 registered under Sections 498-A, 306 read with Section 34 IPC in Police Station Barmana Distt. Bilaspur (H.P.). Brief facts of the case: 2. It is alleged that deceased Nahid aged 26 years was married with co-accused Ishan Khan in the month of February 2015. It is further alleged that deceased Nahid was posted in Animal Husbandry department Devli. It is alleged that on 26.09.2015 deceased Nahid aged 26 years telephoned her brother that accused persons committed cruelty upon deceased in her matrimonial house and abeted the deceased to commit suicide. It is alleged that deceased also written suicide note. It is alleged that deceased Nahid jumped from the bridge on 26.09.2015 and committed suicide at Slappar bridge and her dead body was recovered on 05.10.2015. On the basis of FIR investigation was conducted and charge sheet was filed against accused persons under Sections 498-A, 306 read with Section 34 IPC. Accused persons are facing trial which is under process before learned Trial Court as of today and listed for prosecution evidence. 3. Response filed on behalf of State of Himachal Pradesh. Court heard learned Advocate appearing on behalf of petitioner and learned Deputy Advocate General appearing on behalf of non-petitioner and Court also perused the entire record carefully. 4. Following points arise for determination: (1) Whether bail application filed by petitioner is liable to be accepted as mentioned in memorandum of grounds of bail application? (2) Final Order. Findings upon Point No. 1 with reasons. 5. Submission of learned Advocate appearing on behalf of petitioner that female co-accused have been released on bail and on the concept of parity co-accused Anil Khan be also released on bail is rejected being devoid of any force for reasons hereinafter mentioned. It is well settled law that there is special provision for bail relating to minor accused under age of 16 years, woman accused, sick or infirm accused as per proviso of clause of Section 437 Code of Criminal Procedure 1973 relating to non-bailable criminal offences punishable with death or imprisonment for life. Female co-accused were released on bail as per special provision of bail relating to female co-accused. It was held in case reported in AIR 1957 Rajasthan 10 title Mt. Female co-accused were released on bail as per special provision of bail relating to female co-accused. It was held in case reported in AIR 1957 Rajasthan 10 title Mt. Choti vs. State that special treatment of women and children in bail matter is not inconsistent with Article 15 of Constitution of India. Hence it is held that in view of above stated facts concept of parity will not apply to male accused namely Anil Khan in the present case. 6. Submission of learned Advocate appearing on behalf of petitioner that petitioner is innocent and petitioner did not commit any criminal offence as alleged by the prosecution and on this ground bail application be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Fact whether petitioner committed criminal offence or not is complicated issue of facts. Same will be decided by learned Trial Court after giving due opportunity to prosecution and accused to lead evidence in support of their case. It is not expedient in the ends of justice to give judicial findings relating to innocence of petitioner at this stage of the case unless opportunity is granted to prosecution and accused to lead evidence in support of their case. Judicial findings relating to absence of mens rea on the part of petitioner or actus reus cannot be given at this stage of the case being complicated questions of facts. Judicial findings relating to absence of mens rea or actus reus will be given by learned Trial Court after giving due opportunity to both parties to lead evidence in support of their case. 7. Submission of learned Advocate appearing on behalf of petitioner that any condition imposed by the Court will be binding upon petitioner and on this ground bail application be allowed is rejected being devoid of any force for reasons hereinafter mentioned. Allegations against the petitioner are very heinous and grave in nature relating to criminal offence punishable under Section 306 IPC. At the time of granting bail following factors should be considered: (1) Nature and seriousness of offence. (2) Character of evidence. (3) Circumstances peculiar to the accused. (4) Reasonable possibility of presence of accused in trial or investigation. (5) Reasonable apprehension of witnesses being tampered with. (6) Larger interest of the public or State. See AIR 1978 SC 179 title Gurcharan Singh and others Vs. State (Delhi Administration). (2) Character of evidence. (3) Circumstances peculiar to the accused. (4) Reasonable possibility of presence of accused in trial or investigation. (5) Reasonable apprehension of witnesses being tampered with. (6) Larger interest of the public or State. See AIR 1978 SC 179 title Gurcharan Singh and others Vs. State (Delhi Administration). Also see AIR 1962 SC 253 title The State Vs. Captain Jagjit Singh. Also see 2010 (14) SCC 496 title Prasanta Kumar Sarkar Vs. Ashish Chatterjee and another. 8. Submission of learned Additional Advocate General appearing on behalf of State that trial is under process before competent Court of law and criminal case has been listed for prosecution evidence and if petitioner is released on bail at this stage then petitioner will threat or induce the prosecution witnesses is accepted for reasons hereinafter mentioned. There is apprehension in the mind of the Court that if petitioner is released on bail at this stage then petitioner would induce or threat the prosecution witnesses. Court is of the opinion that in view of gravity of offence and in the interest of general public and State it is not expedient in the ends of justice to release the petitioner on bail at this stage of the case. Point No.1 is answered in negative. Point No. 2 (Final order). 9. In view of my findings on point No. 1 above bail application filed by petitioner under Section 439 Code of Criminal Procedure 1973 is dismissed. Observations will not effect merits of case in any manner and will be strictly confined for disposal of bail application. However learned Trial Court will dispose of case expeditiously because male accused persons are in judicial custody. Cr. MP (M) No. 899/2016 is disposed of. Pending application if any also disposed of.