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2018 DIGILAW 2135 (HP)

Bassa v. State Of Himachal Pradesh

2018-11-30

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Bail petitioner namely Ms. Bassa, who is behind bars since 6.6.2018, has approached this Court in the instant proceedings filed under Section 439 of Cr.PC, praying therein for grant of regular bail in connection with FIR No. 58/18 dated 27.5.2018, under Sections 302, 341, 323, 107, 34 of IPC, registered at PS Tissa, District Chamba, HP. 2. Sequel to order dated 16.11.2018, passed by this Court, ASI Virender Singh, I/O, P.S. Tissa, District Chamba, HP, has come present in Court alongwith record of the case. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the investigating agency. Record perused and returned. 3. Close scrutiny of the record/status report reveals that police after having received information that bail petitioner along with coaccused namely Basheer and Ehsaan Mohd. alias Mushtaq have given beatings to the complainant namely Smt. Bano widow of Shri Peer Mohd. and deceased Peer Mohd., proceeded towards the spot, however, in the way, they came to know that complainant as well as her late husband are being taken to hospital and as such, they recorded the statements of complainant under Section 154 Cr.PC in the Civil Hospital, Tissa, wherein she alleged that on 27.5.2018, she alongwith her husband, daughter and sons namely Miss Bhagu, Matlub and Imran, respectively, had gone to the fields to sow the crop of maze and when they were coming back to their house, bail petitioner along with other co-accused, obstructed their way and gave them beatings with sharp edged weapon. Complainant specifically alleged that bail petitioner namely Basso stopped their way and instigated her son Bashir to kill them. Allegedly, co-accused Basheer after being instigated by the present bail petitioner, gave beatings to the complainant as well as her husband Peer Mohd., as a consequence of which, they suffered injuries. As per the complainant, bail petitioner-Basso also gave beatings to her sons and daughter. Record reveals that medical officer at C.H. Tissa, termed injuries allegedly suffered by the complainant in the alleged incident, to be simple in nature, whereas deceased Peer Mohd. was referred to Medical College Chamba. As per the complainant, bail petitioner-Basso also gave beatings to her sons and daughter. Record reveals that medical officer at C.H. Tissa, termed injuries allegedly suffered by the complainant in the alleged incident, to be simple in nature, whereas deceased Peer Mohd. was referred to Medical College Chamba. On 27.5.2018, police after completion of necessary codal formalities, registered the case against the bail petitioner and other co-accused under Sections 341, 323 and 34 IPC, however on 5.6.2018, police after having received information with regard to death of Peer Mohd., incorporated Sections 302 and 107 IPC in the aforesaid FIR. It emerges from the record that on 5.6.2018, Peer Mohd., expired and he was referred to PGI Chandigarh for post-mortem. Medical officer at PGI opined that "deceased died due to Craniocerebral damage consequent to injury No. 1, which is sufficient to cause death in an ordinary course of nature." After completion of investigation, police has already presented the challan in the competent court of law. 4. Mr. K.B. Khajuria, learned counsel, representing the bail petitioner strenuously argued that no case much less under Section 302 IPC is made out against the present bail petitioner and as such, she deserves to be enlarged on bail. While referring to the record/status report, Mr. Khajuria, contended that as per own case of the prosecution, no injury was caused by the bail petitioner to the deceased Peer Mohd. and complainant Bano, rather injury, if any, on the person of deceased Peer Mohd., was caused by the co-accused namely Basheer. Mr. Khajuria, further contended that factum whether present bail petitioner had instigated the co-accused or other person present on the stop, to give beatings to the complainant and her husband, is yet to be proved by the prosecution by leading cogent and convincing evidence. He argued that mere on the statement of complainant that bail petitioner instigated the co-accused to give beatings to the complainant and her husband is not sufficient to hold the present petitioner guilty of having, committed offence, if any, under Section 107 IPC and as such, at this stage, she deserves to be enlarged on bail. Mr. Khajuraia, contended that for the last 5 months, bail petitioner is behind bars and she being lady deserves to be enlarged on bail as provided under Section 437 (3) Cr.PC. 5. Mr. Mr. Khajuraia, contended that for the last 5 months, bail petitioner is behind bars and she being lady deserves to be enlarged on bail as provided under Section 437 (3) Cr.PC. 5. Mr. Dinesh Thakur, learned Additional Advocate General while fairly admitting that challan stands filed in the competent court of law and nothing remains to be recovered from the bail petitioner, contended that it stands duly established on record that present bail petitioner instigated her son Basheer and other co-accused to give beatings to Peer Mohd., who unfortunately lost his life in the alleged incident and as such, she does not deserve any leniency, rather needs to be dealt with severely. Mr. Thakur, further contended that there is ample evidence adduced on record by the Investigating Agency that on the alleged date of incident, bail petitioner obstructed the way of the complainant and her husband and thereafter, gave them beatings and as such, it cannot be said that she did not play active role at the time of the alleged incident, rather material available on record suggests that bail petitioner was the main instigator and as such, prayer made in the present petition deserves to be dismissed. 6. Having heard parties and perused the material available on record, this Court finds that complainant Bano in her initial statement recorded under Section 161 Cr.PC., categorically stated that present bail petitioner obstructed her passage while she along with her husband was going back to her house, but she has nowhere stated that present bail petitioner gave beatings to her and her husband, rather her allegation against the bail petitioner is that she instigated the co-accused Basheer and other co-accused to give beatings to her and her husband, who unfortunately died in the alleged incident. This Court was unable to lay its hand to evidence, if any, collected by the prosecution at this stage, save and except statement of claimant that at the time of alleged incident, present bail petitioner instigated Basheer to give beatings to Peer Mohd., and as such, guilt, if any, with regard to commission of offence punishable under Section 107 IPC is yet to be established by the prosecution by leading cogent and convincing evidence and as such, this Court sees no reason to keep the present bail petitioner behind the bars for an indefinite period, especial when challan stands filed in the competent court of law. Though aforesaid aspects of the matter are to be considered and decided by the court below on the basis of totality of evidence collected on record by the prosecution, but having perused record, this Court sees no reason to deny the prayer made on behalf of the petitioner for grant of bail at this stage. It is also not in dispute that bail petitioner is a first offender and local resident of the area, who shall always remain available for investigation as well as trial as and when required by the Investigating Agency. 7. Repeatedly, it has been held by the Hon''ble Apex Court as well as this Court that till the time, guilt of individual is not proved in accordance with law, he/she is deemed to be innocent and in the case at hand also, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by the prosecution by leading cogent and convincing evidence. 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 categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon''ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon''ble Apex Court has further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced 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. 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. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons. 9. 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, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. 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. 10. The Hon''ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation , (2012) 1 SCC 40 ; 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 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. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is 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." 11. In Manoranjana Sinh Alias Gupta versus CBI , (2017) 5 SCC 218 , The Hon''ble Apex Court has held as under:- " This Court in Sanjay Chandra v. CBI, 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 or preventive. It was underlined that the object of bail is neither punitive or 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 unconvicted person for the purpose of giving him to 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 ad 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 the 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." 12. The Hon''ble Apex Court in Prasanta Kumar Sarkar v. 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 the aforesaid discussion as well as law laid down by the Hon''ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to her furnishing personal bond in the sum of Rs. 13. In view of the aforesaid discussion as well as law laid down by the Hon''ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail in aforesaid FIR, subject to her furnishing personal bond in the sum of Rs. 1,00,000/- with one local surety in the like amount each to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions: a. She shall make herself 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. She shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. She shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or the Police Officer; and d. She shall not leave the territory of India without the prior permission of the Court. 14. It is clarified that if the petitioner misuses her liberty or violates any of the conditions imposed upon her, 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 this application alone. The bail petition stands accordingly disposed of. Copy dasti.