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2020 DIGILAW 767 (HP)

Parmita Devi v. State of Himachal Pradesh

2020-10-26

SANDEEP SHARMA

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JUDGMENT Sandeep Sharma, J. - Through Video Conferencing Bail petitioner namely Parmita Devi, who is behind the bars for more than two years, has approached this Court in the instant proceedings filed under Section 439 Cr.PC, for grant of regular bail in FIR No. 73/2018 dated 10.7.2018 under Section 302 of IPC, registered at Police Station Sadar, Nahan, District Sirmour, Himachal Pradesh. 2. Sequel to order dated 28.09.2020, respondent-State has filed Status report, perusal whereof reveals that on 10.07.2018, complainant Dhanveer Singh, who happened to be son of deceased Kishan Singh and husband of present bail petitioner, got his statement recorded under Section 154 of Cr.P.C., alleging therein that on 9.7.2018, he had gone to Panethi to collect his pay. He alleged that while he was waiting to get his pay, one Renubala, wife of Prakash informed her that his wife i.e. present bail petitioner has created a scene at his house in his village. He alleged that at about 9 P.M., when he reached his home and asked his wife whether father has taken his meal or not, she started throwing stones at him. He alleged that since his father did not respond to his call, he called his cousin brother Rajinder, but since there was darkness in the room, nothing could be verified as room was locked from inside. He further alleged that next morning when his father did not open his room, he saw from the window and found that his father was lying in the pool of blood on his bed. Complainant alleged that his wife oftenly used to quarrel with his old aged father, who was unable to walk without the aid of stick on account of pain in his groins. Complainant alleged that his wife i.e. bail petitioner has killed his father and as such, appropriate action in accordance with law be taken against her. 3. In the aforesaid background, case under Section 302 of IPC, came to be registered against the bail petitioner on 10.7.2018 and since then, she is behind the bars. Though, challan in the present case stands filed in the competent court of law, but till date, evidence has not commenced and as such, petitioner has approached this court in the instant proceedings, praying therein for grant of regular bail. Though, challan in the present case stands filed in the competent court of law, but till date, evidence has not commenced and as such, petitioner has approached this court in the instant proceedings, praying therein for grant of regular bail. Prior to filing of the petition at hand, petitioner had approached this Court earlier also by way of filing Cr.MPM No. 175 of 2019, but same was dismissed as withdrawn on 20.11.2019. Since no substantial progress has been made in the sessions trial, petitioner, has approached this Court in the instant proceedings, praying therein for grant of regular bail. 4. Mr. Arvind Sharma, Learned Additional Advocate General, while fairly acknowledging the factum with regard to filing of challan in the competent Court of law, contends that though evidence in the case at hand is yet to be commence, but keeping in view the gravity of offence alleged to have been committed by the bail petitioner, she does not deserve to be released on bail and as such, prayer made on behalf of the bail petitioner may be rejected. While making this Court to peruse the status report, Mr. Sharma, learned Additional Advocate General, submits that there is overwhelming evidence available on record, suggestive of the fact that the bail petitioner killed her father-in-law mercilessly and as such, application having been filed on her behalf for grant of bail, deserves outright rejection. 5. Having heard learned counsel for the parties and perused the material available on record, this Court finds that bail petitioner is behind the bars since 10.7.2018, but till date, evidence has not commenced in the sessions trial. Though perusal of the status report clearly reveals that bail petitioner has committed heinous crime punishable under Section 302 of IPC, but guilt, if any, of her, is yet to be established on record by Investigating Agency, by leading cogent and convincing evidence on record. Earlier, bail petition filed by bail petitioner in the year 2019 was dismissed as withdrawn,enabling the prosecution to get the statements of material prosecution witnesses recorded before consideration of prayer, if any, made on behalf of the bail petitioner for regular bail. But as has been taken note hereinabove, more than 2 years have passed, but evidence has not yet commenced. But as has been taken note hereinabove, more than 2 years have passed, but evidence has not yet commenced. Though, as per the status report, deceased Kishan Singh died on account of injuries allegedly inflicted upon him by the bail petitioner, but careful perusal of postmortem report suggests that deceased died on account of having suffered heart attack. Postmortem report reads as under:- "I am of the opinion the deceased died as a result of acute traumatic shock (complicated by gross cardiomegaly and moderate Atheroscloretis changes in the vessels of heart)" 6. Leaving everything aside, this Court is of the view that freedom of the bail petitioner, who is already behind the bars for more than 2 years cannot be curtailed for an indefinite period during trial, especially, when nothing remains to be recovered from him. More than two years have passed, but not a single prosecution witness has been examined. Trial in the case of the bail petitioner, which has been already delayed, is likely to be further delayed on account of prevailing conditions in the wake of COVID-19 pandemic. Though, lower Courts have started/resumed normal working after necessary instructions issued in this regard by this Court, but still evidence is being recorded in limited number of cases to avoid rush/gathering in the Courts. Though, lower Courts have started/resumed normal working after necessary instructions issued in this regard by this Court, but still evidence is being recorded in limited number of cases to avoid rush/gathering in the Courts. Leaving everything aside, petitioner being woman is entitled to bail in terms of the provision contained under Section 437 of Cr.P.C, which reads as under:- "(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but- (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of (a cognizable offence punishable with imprisonment for three years or more but not less than seven years)." Provided that the Court may direct that a person referred to clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm." Though, careful perusal of the aforesaid provision of law reveals that person having committed offence punishable with death, imprisonment for life shall not be released on bail, but proviso (I) to the aforesaid provision of law clearly suggests that Court may direct or release a person referred to in clause (i) or clause (ii) on bail, if such person is under the age of sixteen years or is a woman or is sick or infirm. Hence, petitioner being woman is also entitled to be released on bail in terms of the aforesaid provision of law. 7. Needless to say that speedy trial is legal right of the accused and one cannot be made to suffer indefinitely for delay in trial and as such, this Court sees no reason to keep the bail petitioner behind the bars for indefinite period during trial. 7. Needless to say that speedy trial is legal right of the accused and one cannot be made to suffer indefinitely for delay in trial and as such, this Court sees no reason to keep the bail petitioner behind the bars for indefinite period during trial. Delay in trial has been held to be in violation of the right guaranteed under article 21 of Constitution of India. 8. Reliance is placed on judgment passed by the Hon'ble Apex Court in case titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2 SCC 731 , relevant para whereof has been reproduced herein below:- "11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6 SCC 731 ; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616 ) Accused, even in cases under TADA, have been released on bail on the ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569 ). 9. Otherwise also, petitioner is not a habitual offender or a hardened criminal, who in the event of being enlarged on bail, may flee from justice or again indulge in such activities, rather she being local resident of area would be always available for trial. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, she may flee from justice, can be best met by putting her to the stringent conditions. Otherwise also Hon'ble Apex Court as well as this Court have held in catena of judgments, that till the time, guilt of a person is not proved in accordance with law, he/she is deemed to be innocent. 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 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. 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 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. 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. 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. 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. 11. 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. 11. 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. 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. 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. 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." 13. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted." 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. 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. 2,00,000/- with one surety in the like amount 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 him/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. (e) She shall handover passport to the Investigating Agency. (f) She shall make herself available in the concerned police station i.e. Sadar Nahan, District Sirmour, Himachal Pradesh once a week at 11:00AM sharp. 15. (e) She shall handover passport to the Investigating Agency. (f) She shall make herself available in the concerned police station i.e. Sadar Nahan, District Sirmour, Himachal Pradesh once a week at 11:00AM sharp. 15. It is clarified that if the petitioner misuses the 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. 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 petition stands accordingly disposed of. Copy dasti.