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Himachal Pradesh High Court · body

2018 DIGILAW 2199 (HP)

Sumit Kumar v. State Of Himachal Pradesh

2018-12-12

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Bail petitioner namely, Sumit Kumar, who is behind the bars since 3.6.2018, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No.86 of 2018, dated 3.6.2018, under Sections 306, 498A and 34 of IPC, registered at police Station, Baijnath, District Kangra, Himachal Pradesh. 2. Sequel to order dated 28.11.2018 SI Jagjit Singh, has come present alongwith the record. 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 on 3.6.2018 complainant namely, Smt. Pravesh Kumari got her statement recorded under Section 154 Cr.P.C., alleging therein that her elder daughter Suman had joined Max Private Hospital, Section 6 Mohali, Chandigarh in the year, 2017. On 20.12.2017, an employee of aforesaid hospital informed her that their daughter is not coming to Hospital for the last 23 days and as such, she alongwith her Son Mukesh Kumar and Uncle Mahender Singh went to the hospital to know whereabouts of her daughter Suman. In the hospital, complainant came to know that her daughter Suman, aged 23 years has gone with person namely, Sumit Kumar son of Sh. Joginder Pal, R/o VPO Sakari, Tehsil Baijnath, District Kangra, H.P., for solemnizing marriage. Though, complainant went to the village of bail petitioner at Sakari, but her daughter refused to talk her. Complainant alleged that whereafter her daughter, who had solemnized marriage with the bail petitioner, telephonically disclosed her that bail petitioner as well as her motherinlaw maltreat her for not bringing dowry. She alleged that on 2.6.2018 at 8:30 PM, Sh. Gurcharan Singh, Pradhan Gram Panchayat informed that her daughter Suman has committed suicide and as such, she went to the hospital at Baijnath. She alleged that she has apprehension that her daughter has been killed by bail petitioner as well as her motherinlaw for not bringing dowry and as such, appropriate action may be taken against them. Gurcharan Singh, Pradhan Gram Panchayat informed that her daughter Suman has committed suicide and as such, she went to the hospital at Baijnath. She alleged that she has apprehension that her daughter has been killed by bail petitioner as well as her motherinlaw for not bringing dowry and as such, appropriate action may be taken against them. On the basis of aforesaid complaint, FIR detailed hereinabove, came to be lodged against the bail petitioner on 3.6.2018 and since then bail petitioner is behind the bars, whereas coaccused Smt. Anita Devi was enlarged on bail by learned Additional Sessions Judge, Kangra at Dharamshala on 3.10.2018. 4. Mr. Surinder Saklani, learned counsel representing the bail petitioner, while referring to the record/ status report, vehemently argued that no case, if any, is made out against the bail petitioner under Section 306 and 498A IPC and as such, he deserves to be enlarged on bail. Mr. Saklani, further argued that there is no statement, if any, given by independent witnesses to support the allegations levelled by the mother of the deceased. He contended that mere statement of mother of the deceased (complainant), liberty of bail petitioner cannot be curtailed for indefinite period, especially when it is apparent from the record that relation of bail petitioner with the complainant were not cordial. Mr. Saklani, further contended that investigation in the case is complete and nothing is required to be recovered from bail petitioner and as such, he deserves to be enlarged on bail. He further contended that petitioner being first offender deserves to be enlarged on bail. 5. Mr. Dinesh Thakur, learned Additional Advocate General, while fairly acknowledging the factum with regard to filing of challan in the competent Court of law, contended that keeping in view the gravity of the offences allegedly committed by the bail petitioner, he does not deserves to be enlarged on bail. Learned Additional Advocate General further contended that statement of complainant itself sufficient to prove the guilt of the bail petitioner as well as coaccused because it has specifically come in the statement of the complainant that deceased Suman used to tell her that bail petitioner and her motherinlaw maltreated her for not bringing dowry. 6. Learned Additional Advocate General further contended that statement of complainant itself sufficient to prove the guilt of the bail petitioner as well as coaccused because it has specifically come in the statement of the complainant that deceased Suman used to tell her that bail petitioner and her motherinlaw maltreated her for not bringing dowry. 6. Having heard learned counsel for the parties and perused the material available on record, this Court finds that at present investigating agency has only recorded the statement of the complainant, who alleged that her daughter used to tell her that her husband(present bail petitioner) and coaccused maltreats her for not bringing dowry, but admittedly no independent witness has been associated by the prosecution to corroborate the version put forth by the complainant. This Court was unable to lay its hand to any documents adduced on record by investigating agency suggestive of the fact that complaint, if any, was ever lodged by deceased to Gram Panchayat or to police qua the maltreatment, if any, given to her by bail petitioner or his family members. There appears to be considerable force in the arguments of learned counsel for the petitioner that complainant was averse to the marriage of deceased Suman with the bail petitioner and as such, statement of her having been made against bail petitioner cannot be accepted on its face value, rather police ought to have adduced on record some corroborative evidence. But in the case at hand, there is no material adduced on record by the investigating agency in this regard. In the instant case record reveals that present bail petitioner immediately after having noticed that deceased has committed suicide took her to hospital, but unfortunately deceased could not be saved. There is another aspect of the matter, marriage inter se deceased and bail petitioner was love marriage and not arrange marriage and as such, allegations of demand of dowry also does not appear to be trustworthy. 7. Though, aforesaid aspects of the matter are to be considered and decided by the learned court below on the basis of the evidence collected by the prosecution, but at this stage, this Court having perused the material available on record sees no reason to allow the bail petitioner to incarcerate in jail for indefinite period, especially when he has already suffered for more than six months in jail. There is no material placed on record by the investigating agency suggestive of the fact that in the event of petitioner''s being enlarged on bail, he may flee from justice or he may tamper with evidence. Apprehension expressed by learned Additional Advocate General can be best met by putting bail petitioner to stringent conditions, as has been fairly admitted by learned counsel representing the bail petitioner. 8. Otherwise also, it is well settled that till the time guilt of a person is not proved in accordance with law, he/she is deemed to be innocent. Challan stands filed in the competent Court of law and no material has been adduced on record, from where it can be inferred that in the event of petitioner''s being enlarged on bail, he may flee from justice and as such, this Court sees no reason to curtail the freedom of the petitioner for indefinite period, especially when the investigation in the case is almost complete. 9. It has been repeatedly held by Hon''ble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved, in accordance with law. 10. 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 cannot 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. 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. 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. 11. 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 SCC 40 ; wherein it 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. 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." 12. 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. 13. 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. 14. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 1,00,000/ (Rs. 14. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond 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 trial Court, with 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 them 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. 15. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of his bail. 16. 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 disposed of accordingly. Copy dasti.