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Himachal Pradesh High Court · body

2019 DIGILAW 916 (HP)

Vinod Kumar v. State of Himachal Pradesh

2019-07-10

SANDEEP SHARMA

body2019
JUDGMENT : Sandeep Sharma, J. Bail petitioner namely, Vinod Kumar, who is behind the bars since 2.6.2019, 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.53 of 2019, dated 2.6.2019, under Sections 498-A, 306 and 34 of IPC, registered at police Station, Kandaghat, District Solan, Himachal Pradesh. 2. Sequel to order dated 12.6.2019, ASI Keshav Ram Pargi, has come present alongwith the record. Mr. Kunal Thakur, learned Deputy 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 1.6.2019, police after having received information that one lady has hanged herself, went to the alleged spot of incident and recorded the statement of complainant namely, Sh. Jai Chand, who happened to be father of the deceased, under Section 154 Cr.P.C. Complainant alleged that four years back marriage of her deceased daughter was solemnized with Vinod Kumar i.e. present bail petitioner as per Hindu Rites and customs. He further alleged that one girl also born from the wedlock of her deceased daughter and bail petitioner. He alleged that her deceased daughter used to complaint to him and other family members that her in-laws harass her unnecessarily. He also alleged that her deceased daughter committed suicide after being harassed by his husband and in- laws. On the basis of aforesaid statement made by the complainant, formal FIR, as detailed hereinabove, came to be lodged against the bail petitioner and since 2.6.2019 he is behind the bars. 4. Mr. Kunal Thakur, learned Deputy Advocate General while fairly acknowledging the factum with regard to completion of the investigation, contended that though at this stage nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency. Mr. Thakur, further contended that there is overwhelming evidence available on record suggestive of the fact that deceased daughter of the complainant committed suicide after being mentally harassed by the present bail petitioner and his family members and as such, present petition may be rejected. 5. Mr. Mr. Thakur, further contended that there is overwhelming evidence available on record suggestive of the fact that deceased daughter of the complainant committed suicide after being mentally harassed by the present bail petitioner and his family members and as such, present petition may be rejected. 5. Mr. Sudhir Thakur, learned Senior Advocate representing the bail petitioner while refuting the aforesaid submission having been made by the learned Deputy Advocate General, contended that there is nothing on the record to suggest that bail petitioner or his family members ever raised demand, if any, of dowry and as such, case under Section 498- A of IPC is not made out against the bail petitioner. He further states that as per the own statement of the complainant, he did not lodge any report either to the Gram Panchayat or to the police with regard to the previous incident, if any. Lastly, Mr. Thakur, contends that bail petitioner is a local resident of the area and he shall always remain present for investigation and trial and as such, his freedom may not be curtailed during the trial for an indefinite period. 6. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that the complainant has not stated that bail petitioner or his family members ever raised any demand of dowry, rather he has simply stated that her daughter used to tell him as well as other family members that her in laws mentally harass her. Moreover, there is nothing on record to suggest that complaint, if any, ever came to be lodged either by the deceased or her parents to the police with regard to demand of dowry. Save and except, complainant, who happened to be father of the deceased, none of the witnesses associated by the investigating agency stated something specific with regard to ill- treatment meted to the deceased by the present bail petitioner or his family members and as such, this Court sees no reason to allow the bail petitioner to incarcerate in jail for an indefinite period. This Court also cannot loose the sight of the fact that deceased has left behind two years minor daughter, who requires constant love and affection of her father. This Court also cannot loose the sight of the fact that deceased has left behind two years minor daughter, who requires constant love and affection of her father. Allegations, if any, of mental harassment and demand of dowry are yet to be proved by the prosecution and as such, no fruitful purpose would be served by keeping the bail petitioner behind the bars. 7. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence to be collected on record by the prosecution, but having noticed the aforesaid glaring aspects, this Court sees no reason to curtail the freedom of the bail petitioner for an indefinite period, especially, when guilt, if any, of him is yet to be proved in accordance with law. 8. It has been repeatedly held by Hon'ble Apex Court as well as this Court that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law. Investigation in the case is complete and 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 and as such, prayer made on behalf of the bail petitioner deserves to be considered. 9. Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh and 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 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. Hon'ble Apex Court 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. 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. 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. 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 10. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation, 2012 1 SCC 49; 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 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. 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. 12. 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. 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. 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 surety in the like amount each, 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 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. 14. 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 the bail. 15. 14. 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 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 disposed of accordingly.