Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 1804 (HP)

Deepak Kumar v. State of Himachal Pradesh

2018-10-08

SANDEEP SHARMA

body2018
JUDGMENT : SANDEEP SHARMA, J. 1. Bail petitioner namely Deepak Kumar, who is behind the bars since 20.9.2018, has approached this court in the instant proceedings, praying therein for grant of regular bail in case FIR No. 26/18 dated 19.9.18, under Sections 498-A, 306 and 201 IPC, registered at Police Station Kaza, Lahul & Spiti, Himachal Pradesh. 2. Sequel to order dated 24.9.2018, SI/SHO Chattar Singh, Police Station Kaza, Lahul & Spiti, Himachal Pradesh has come present with the record. Mr. Dinesh Thakur, learned Additional Advocate General has also placed on record status report, prepared on the basis of investigation carried out by the investigating agency. Record perused and returned. 3. Careful perusal of record/status report suggests that on 5.6.2018, police received an information from medical officer, CHC Kaza that one lade namely Shalini wife of the present bail petitioner, has been brought dead to the hospital. After having received aforesaid information, police started investigation. On 7.6.2018, police sent the preserved viscera of the deceased to RFSL Mandi, for chemical analysis. On 19.9.2018, police received report of the RFSL Mandi, who opined that Organophosphorus insecticide has been detected in the viscera of the deceased Shalini. Pursuant to aforesaid report, police obtained report from the medical officer, CHC Kaza, who in her report, opined that, “I am of the opinion that the deceased Smt. Shalini age 26 yrs. Female died (sic. dieds) due to cardio respiratory arrest because of use of Organophosphorus poison” On 20.9.2018, police arrested the present bail petitioner, who happened to be husband of the deceased, Shalini. As per investigation conducted by the police, deceased Shalini consumed poison after being harassed by her husband as well as his family members. In the aforesaid background, FIR detailed herein above came to be lodged against the bail petitioner as well as other family members of the bail petitioner. Bail petitioner is behind the bars since 20.9.2018, whereas, other co-accused have been already enlarged on interim bail by learned Additional Sessions Judge, Rampur. 4. Mr. Suresh Saini and Mr. Vinod Chauhan, learned counsel appearing for the bail petitioner, while inviting attention of this court to the status report, vehemently argued that no case is made out against the bail petitioner under Ss. 498-A, 306 and 201 IPC, as such, he deserves to be enlarged on bail. Mr. 4. Mr. Suresh Saini and Mr. Vinod Chauhan, learned counsel appearing for the bail petitioner, while inviting attention of this court to the status report, vehemently argued that no case is made out against the bail petitioner under Ss. 498-A, 306 and 201 IPC, as such, he deserves to be enlarged on bail. Mr. Chauhan, argued that factum with regard to death of deceased Shalini had come to the notice of the police on 5.6.2018, but there is no plausible explanation on record with regard to delay in lodging FIR, which admittedly came to be lodged on 19.9.2018. He further argued that there is no material, if any, adduced on record by the investigating agency suggestive of the fact that deceased Shalini was being harassed by the bail petitioner or other family members, for want of dowry, as such, bail petitioner, who is a government employee, deserves to be enlarged on bail. Lastly, Mr. Chauhan, contended that the investigation in the case is almost complete and nothing is required to be recovered from the bail petitioner as such, prayer for his release on bail may be considered. 5. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly acknowledging the factum with regard to completion of investigation, stated that keeping in view the gravity of the offence alleged to have been committed by the bail petitioner, he does not deserve to be enlarged on bail. He further argued that on 5.6.2018, investigating agency, after having received information from medical officer had made an entry in the Rojnamcha but FIR could only be registered against the bail petitioner after receipt of report from the RFSL Mandi. Mr. Thakur, while inviting attention of this court to the report submitted by RFSL as well as medical officer Kaza, contended that it has come specifically on record that deceased Shalini had consumed poison. While referring to the statement of bail petitioner, Mr. Thakur made a serious attempt to persuade this court that bail petitioner despite having noticed that deceased Shalini after having consumed poison is suffocating, took no steps to take her to the hospital, rather, he along with other family members, waited till her death, where after she was taken to the hospital. 6. I have heard the learned counsel for the parties and gone through the record carefully. 7. 6. I have heard the learned counsel for the parties and gone through the record carefully. 7. Having carefully perused the material available on record, this court is persuaded to agree with the contention of Mr. Vinod Chauhan, learned counsel representing the bail petitioner that there is no material on record adduced by the investigating agency at this stage, suggestive of the fact that complaint, if any, was ever made by deceased to her parents against the bail petitioner or his family members alleging therein that she was being harassed on account of dowry. Otherwise also, if statement having been made by mother of deceased (Shalini) is perused, it also nowhere indicates that at any point in time, deceased had conveyed to her with regard to cruelty being meted out to her by her husband (bail petitioner) or other family members. Though aforesaid aspect of the matter is to be considered and decided by the court below, on the basis of evidence being adduced on record by the investigating agency, but this court having perused record/status report, sees no reason to let the bail petitioner incarcerate in jail for indefinite period. Otherwise also, investigation is almost complete and nothing is required to be recovered from the bail petitioner. No material has been brought on record by investigating agency, from where it can be inferred that in the event of bail petitioner being enlarged on bail, he may flee from justice. It is not in dispute that bail petitioner is a government employee and as such, there is no likelihood of his fleeing from justice. It is well settled law that till such time, guilt of a person is not proved, he is deemed to be innocent. In the case at hand, guilt of bail petitioner is yet to be proved in accordance with law. 8. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual can not be curtailed for indefinite period, especially when his guilt has not been proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under: “2. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under: “2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.” 9. By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been held as under:- “The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” 69s the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.” 10. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218 , Hon'ble Apex Court has held as under: “This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40 , also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive nor preventive. It was underlined that the object of bail is neither punitive nor preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.” 11. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 12. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 12. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 13. In view of above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing bail bonds in the sum of Rs.1,00,000/- (Rs. One Lakh) with one local surety in the like amount, to the satisfaction of the learned CJM Reckong Peo/Rampur, besides following conditions: (a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; (c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and (d) He shall not leave the territory of India without the prior permission of the Court. (e) He shall surrender passport, if any, held by him. 14. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 15. (e) He shall surrender passport, if any, held by him. 14. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 15. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of instant petition alone. The petition stand accordingly disposed of.