JUDGMENT Anoop Chitkara, J. - The present petition is under Section 439 of the Code of Criminal Procedure, seeking regular bail in F.I.R. No. 231/17, 28.9.2017, registered at Police Station Balh, Distt. Mandi, H.P., under Sections 302, 392, 201, read with Section 34 of the Indian Penal Code. In this case police report stands filed under Section 173 Cr.P.C. 2. ASI Lal Chand, I/O, Police Station Balh, Distt. Mandi, H.P., was present on the last date, when the matter was heard. He had filed status report and had also brought the police file. I have seen the status report as well as the police file to the extent it was necessary for the purpose of deciding the present petition and the same stands returned to the police official. Status report was taken on record. 3. I have heard learned counsel for the petitioner as also the learned Additional Advocate General for the respondent/State. Status report also perused. Police file was also made available to the Court which was thoroughly seen and returned. 4. The gist of the prosecution case necessary for the purpose of deciding this bail application is as follows: (a) On receipt of information of a dead body of a lady lying near her house, police swung into action. Inspector Sanjeev Sood, SHO, Police Station Balh, started the investigation and reached the spot. (b) After preliminary investigation, Sh. Prem Singh gave his statement to Inspector Sanjeev Sood, SHO, Police Station Balh, which he recorded as statement under Section 154 Cr.P.C. on 28.9.2017 at 2.00 p.m., at Sakroha, which was the spot of the incident. (c) In the said statement Prem Singh stated that deceased Fulmu Devi was his elder sister and was residing separately at Sakroha. Her husband had died long time before. No issue was born to the couple. She used to reside alone in the house. (d) He further stated that on 28.9.2017, in the morning at about 9.30 a.m., his nephew Jalam Ram informed him that his sister had died. On this he reached Sakroha. (e) On reaching the house of his sister, he noticed that lot of people had assembled there. The dead body of his sister was lying at the southern portion outside the house, with both the arms of her sister tied with shawl, and blood oozing out from the mouth. On this he reached Sakroha. (e) On reaching the house of his sister, he noticed that lot of people had assembled there. The dead body of his sister was lying at the southern portion outside the house, with both the arms of her sister tied with shawl, and blood oozing out from the mouth. (f) He further stated that his sister used to wear rings, made of gold, in her ears but those were not noticed by him in her ears. (g) He further stated that when he checked the residential room of his sister then he noticed that the lock holder of the trunk was broken and the lock was hanging from it. The luggage of the room was also shattered. (h) He further stated that his sister had hired one Krishna Devi as a care-taker. 5. On these allegations, the present FIR was registered. 6. During investigation, police recorded the statement of Krishna Devi under Section 161 Cr.P.C. She stated as follows: (a) The husband of Fulmu Devi deceased had died 20 years before and the couple was issue less. (b) Fulmu Devi deceased used to reside alone in her house and she was slightly lame because one of her legs had been operated. (c) She further stated that Fulmu devi had around one bigha land (750 Sq. Mts.) around her house. Apart from that there is also a single storied cemented house. (d) She further stated that she used to take care of Fulmu Devi deceased for the last two and a half years. She would return back to her home after cooking the evening meals. (d) On 27.9.2017, as usual, she went to her house, cooked food for her, and thereafter returned at 7.30 p.m. (e) On the next day, i.e. 28.9.2017, in the morning at about 8.30 a.m., she came to know through her daughter-in-law Babli that Fulmu Devi is dead. (f) She further stated that some unknown persons have caused her death, after committing robbery at her house. 7. The Investigating Officer got the post mortem examination of the deceased conducted through Government Hospital Mandi at Ner Chowk. In the post mortem report there is no mention of time between the injury and the death and the probable time between death and post mortem is 12 - 24 hours. The post mortem took place on 28.9.2017 at 5.00 p.m., that is the same day. In the post mortem report there is no mention of time between the injury and the death and the probable time between death and post mortem is 12 - 24 hours. The post mortem took place on 28.9.2017 at 5.00 p.m., that is the same day. As such Fulmu Devi is likely to have died any time from the evening of 27.9.2017 till the morning of 28.9.2017. 8. After investigation, police arrested one Durga Dass on 4.10.2017. Police recovered one mobile phone from Durga Dass, which belonged to the deceased. It had been used by Durga Dass on 29 th and 30 th September, 2017, by inserting a SIM card in it. Further his statement under Section 27 of the Indian Evidence Act was recorded which led to the recovery of utensils sold to one Gagan Kumar. 9. As far as the present bail petitioner Tek Chand is concerned, he was also arrested on 4.10.2017. While in police custody, he also gave a disclosure statement under Section 27 of the Indian Evidence Act, regarding the place where he had thrown the weapon of offence. However, police could not discover any weapon. 10. Another set of evidence collected by the prosecution is that Fulmu Devi deceased used to sell illicit liquor. One Nar Bahadur had seen both the accused visit her house on 26 th and 27 th September, 2017. So case of the prosecution is based also on the theory of last seen. 11. Statement of said Nar Bahadur under Section 161 Cr.P.C. was also recorded by the Investigating Officer on 11 th October, 2017, 12. Without commenting on the merits of the last seen evidence, even as per the case of the prosecution, Krishan Devi had left her house at 7.30 p.m. and till that time she was alive. She was also with the deceased. The evidence against Durga Dass is multiple, which includes usage of mobile phone, discovery of stolen articles. As far as evidence against the present bail petitioner is concerned, it is only the evidence of last seen. There is no other evidence against the petitioner. 13. Learned Additional Advocate General did not point out that there was any other evidence against the present petitioner except pointing of the place where he had allegedly thrown the weapon of offence which was not recovered. 14. There is no other evidence against the petitioner. 13. Learned Additional Advocate General did not point out that there was any other evidence against the present petitioner except pointing of the place where he had allegedly thrown the weapon of offence which was not recovered. 14. In view of the nature of the allegation against the present bail petitioner Tek Chand alias Indu, I am of the considered opinion that he is entitled to bail on the following grounds: (a). That the only evidence against the bail petitioner is the statement of Nar Bahadur recorded under Section 161 Cr.P.C., in which he has stated that for two days prior to her death, he has seen both the accused visiting house of the deceased. At the stage of bail, it is sufficient to mention that this statement of Nar Bahadur was recorded on 11.10.2017, whereas the alleged crime took place on 28.9.2017. It means that statement was recorded after a gap of 13 days. He was the person living in the vicinity and no reason has been assigned as to why he did not state this fact initially. This observation is being made only for the purpose of deciding this bail application and shall not at all be considered by the learned trial Court, during the course of hearing. He shall arrive at his own findings on this evidence, if so required. (b) The next evidence which prosecution tried to introduce was the disclosure statement, wherein he pointed the place from where he along with the principal accused had thrown the weapon of offence. It is mentioned in the police report under Section 173 Cr.P.C. that such disclosure statement did not lead to discovery of any fact. (c) That the accused is in custody from 4.10.2017 and as such he is in judicial custody for the last more than one year and eight months. 15. Honble the Supreme Court in Criminal Appeal No. 605 of 2019 (arising out of SLP (Crl.) No. 2123 of 2018), titled as Zahur Haider Zaidi vs. Central Bureau of Investigation, decided on 5 th April, 2019 stated as follows: "Our attention has been drawn to the allegations against the accused-appellant and that he is in custody for the last 19 months. Though the accused-appellant is facing charge under section 302, we are told that the trial has not made substantial progress beyond the framing of the charge. Completion of trial will take some time." 16. Principles with regard to grant of bail are well settled, which have been reiterated by the Honble Supreme Court in numerous pronouncements. The Honble Supreme Court in case titled as Gurcharan Singh versus State (Delhi Administration), reported in (1978) 1 Supreme Court Cases 118, has laid the following criteria for grant of bail: "22. In other non-bailable cases the Court will exercise its judicial discretion in favour of granting bail subject to sub-section (3) of Section 437 CrPC if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the court which may defeat proper investigation and a fair trial, the Court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to Section 437 (1) CrPC and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence. 23. 24. Section 439 (1) CrPC of the new Code, on the other hand, confers special powers on the High Court or the Court of Session in respect of bail. Unlike under Section 437 (1) there is no ban imposed under Section 439 (1) CrPC against granting of bail by the High Court or the Court of session to persons accused of an offence punishable with death or imprisonment for life. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. It is, however, legitimate to suppose that the High Court or the Court of Session will be approached by an accused only after he has failed before the Magistrate and after the investigation has progressed throwing light on the evidence and circumstances implicating the accused. Even so the High Court or the Court of session will have to exercise its judicial discretion in considering the question of granting of bail under Section 439 (1) CrPC of the new Code. The overriding considerations in granting bail to which we adverted to earlier and which are common both in the case of Section 437 (1) and Section 439 (1) CrPC of the new Code are the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses; the likelihood, of the accused fleeing from justice; of repeating the offence, of jeopardising his own life being faced with a grim prospect of possible conviction in the case; of tampering with witnesses; the history of the case as well as of its investigation and other relevant grounds which, in view of so many variable factors, cannot be exhaustively set out." 17. The Honble Supreme Court in case titled as Prasanta Kumar Sarkar versus Ashis Chatterjee and another, reported in (2010) 14 Supreme Court Cases 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. Thereafter, the Honble Supreme Court in a detailed judgment in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, reported in (2011) 1 Supreme Court Cases 694, relying upon pronouncement of the Constitution Bench in Gurbaksh Singh Sibbia versus State of Punjab, reported in (1980) 2 Supreme Court Cases 565, laid down the following parameters for grant of bail:- "(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused''s likelihood to repeat similar or the other offences; (v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail." 18. Following observations made by the Honble Supreme Court in Sanjay Chandra versus Central Bureau of Investigation, reported in (2012) 1 Supreme Court Cases 40, may also be relevant to be reproduced herein: "21. In bail applications, generally, it has been laid down from the earliest times that 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 is 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. 22. From the earliest times, it was appreciated that 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'' is the operative test. In this country, 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. 23. Apart from the question of prevention being the object of a 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 un-convicted person for the purpose of giving him a taste of imprisonment as a lesson. 24. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. 24. The grant or refusal to grant bail lies within the discretion of the Court. The grant or denial is regulated, to a large extent, by the facts and circumstances of each particular case. But at the same time, right to bail is not to be denied merely because of the sentiments of the community against the accused. The primary purposes of bail in a criminal case are to relieve the accused of imprisonment, to relieve the State of the burden of keeping him, pending the trial, and at the same time, to keep the accused constructively in the custody of the Court, whether before or after conviction, to assure that he will submit to the jurisdiction of the Court and be in attendance thereon whenever his presence is required." 16. In a recent pronouncement in case titled as Dataram Singh versus State of Uttar Pradesh and another, reported in (2018) 3 Supreme Court Cases 22, the Honble Supreme Court, after considering its previous pronouncements, has held as under: "2. 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. 3. 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. 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. 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 436-A in the Code of Criminal Procedure, 1973. 4. 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 Inhuman Conditions in 1382 Prison, In re (2017) 10 SCC 658 : (2018) 1 SCC (Cri) 90. 5. The historical background of the provision for bail has been elaborately and lucidly explained in a recent decision delivered in Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 : (2017) 13 Scale 609 , going back to the days of the Magna Carta. In that decision, reference was made to Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 : 1980 SCC (Cri) 465, in which it is observed that it was held way back in Nagendra Nath Chakravarti, In re 1923 SCC OnLine Cal 318 : AIR 1924 Cal 476, that bail is not to be withheld as a punishment. Reference was also made to Emperor v. H.L. Hutchinso, 1931 SCC OnLine All 14 : AIR 1931 All 356 , wherein it was observed that grant of bail is the rule and refusal is the exception. Reference was also made to Emperor v. H.L. Hutchinso, 1931 SCC OnLine All 14 : AIR 1931 All 356 , wherein it was observed that grant of bail is the rule and refusal is the exception. The provision for bail is therefore age-old and the liberal interpretation to the provision for bail is almost a century old, going back to colonial days. 6. However, we should not be understood to mean that bail should be granted in every case. The grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner and compassionately. Also, conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory." 19. Keeping in view the nature of the allegations and the fact that judicial custody is not going to serve any purpose whatsoever, I am of the considered view that, prima facie a case for bail is made out. 20. Also, in the status report, there is no mention of any previous criminal history of the bail petitioner. The petitioner is a permanent resident of the address mentioned in the memo of parties. Therefore, the presence of the petitioner can always be secured to face trial. 21. In the result the present petition is allowed. The petitioner shall be released on bail in the present case, in connection with the FIR mentioned above, on his furnishing personal bond in the sum of Rs. 5000/- with one surety in the like amount to the satisfaction of the trial Court /Sessions Court. 22. It is clarified that the present bail order is only with respect to the above mentioned FIR. It shall not be construed to be a blanket order of bail in all other cases, if any, against the petitioner. 23. This Court is granting the bail subject to the conditions mentioned herein. The petitioner undertakes to comply with all the directions given in this order and the furnishing of bail bonds by the petitioner is acceptance of all such conditions: a) The petitioner is directed to join the investigation as and when called by the Investigating Officer. It shall be open for the Investigating Officer to call the petitioner as and when he feels such a necessity. It shall be open for the Investigating Officer to call the petitioner as and when he feels such a necessity. The petitioner undertakes to appear before the Investigating Officer as and when directed to do so. However, whenever the investigation takes place within the boundaries of the Police Station or Police Post, then the Petitioner shall not be called before 9 A.M and shall be let off before 5 p.m. b) The Petitioner shall neither influence nor try to control the investigating officer, or any witnesses in any manner whatsoever. c) The petitioner undertakes not to contact the complainant, to threaten or browbeat him or to use any pressure tactics. d) The Petitioner undertakes not to make any inducement threat or promise, directly or indirectly, to the investigating officer or any person acquainted with the facts of the case to dissuade him from disclosing such facts to the Court or any Police Officer or tamper with the evidence. e) The Petitioner shall not hamper the investigation. f) The petitioner undertakes to attend the trial. 24. However, it is clarified that in case, if the petitioner to fails to attend the trial Court even on a single occasion, his bail shall automatically stand cancelled without taking further orders from this Court. This stringent condition is being imposed because the other co-accused is still in jail and if the trial is delayed his liberty would be curtailed. 25. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above. Petition stands allowed in the aforesaid terms. Copy dasti.