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2024 DIGILAW 169 (HP)

Babita Negi v. State of Himachal Pradesh

2024-03-12

RANJAN SHARMA

body2024
JUDGMENT : RANJAN SHARMA, J. 1. The bail petitioner, Babita Negi, has come up before this Court, seeking pre-arrest bail under Section 438 of the Code of Criminal Procedure originating from FIR No. 10 dated 10.02.2024, registered under Sections 204, 406, 408 and 120-B of the Indian Penal Code, at Police Station Chirgaon, District Shimla, H.P. 2. The bail petition was listed before this Court on 13.2.2024 when this Court had passed the following orders: “2. The petitioner-accused, Babita Negi, has come up before this Court seeking pre-arrest bail under Section 438 of the Code of Criminal Procedure, originating from FIR No. 10, dated 10.02.2024, registered under Sections 204, 406, 408, 420 and 120-B of Indian Penal Code at Police Station Chirgaon, District Shimla, Himachal Pradesh. 3. The case of the bail petitioner-accused is that she is an elected Ward Member from Ward No. 1 of Nagar Panchayat Chirgaon, District Shimla. It is averred that between 6th to 8th November, 2021, the petitioner went to the office of Patwari concerned and had not taken any file from the office of aforesaid Patwari. It is further stated that the petitioner-accused has been falsely implicated and the facts have been fabricated in the FIR. Learned counsel for the petitioner stated that the incident had occurred in November, 2021 whereas, the FIR has been registered after about two years and two months. It is also averred in the bail application that the petitioner is a social and political worker and the FIR has been registered just to malign the image of the petitioner and to rope her on false and fictitious allegations. In the bail application, the petitioner has given the undertaking that the petitioner shall join the investigation as and when called for and shall neither temper with the evidence and witnesses in any manner. 4. In the entirety of facts and circumstances as borne out from the application as well as documents annexed thereto, it is ordered that in the event of arrest, the bail petitioner-accused herein, be released on interim bail, till the next date of hearing, with the following conditions: (i) In the event of the arrest of the petitioner, she shall be released on bail on execution of her personal bond in the sum of Rs. 50,000/- with one surety, in the like amount, to the satisfaction of Station House Officer, Police Station Chirgaon, District Shimla. 50,000/- with one surety, in the like amount, to the satisfaction of Station House Officer, Police Station Chirgaon, District Shimla. (ii) The petitioner shall report at Police Station Chirgaon, District Shimla H.P. on 14.02.2024 at 3:00 p.m. (iii) The petitioner shall disclose her functional E-Mail IDs/Whatsapp number and that of his surety to the SHO/IO concerned on 14.02.2024. (iv) The petitioner shall not hinder the smooth flow of the investigation and shall join the investigation, on each and every date, as and when called, by the Investigating Agency; (v) The petitioner shall not jump over the bail and also shall not leave the State of Himachal Pradesh without prior information of the Court. (vi) That the petitioner shall not tamper with the witnesses or the evidence in any manner. (vii) The petitioner shall not directly or indirectly make any inducement, thereat or promise to any person acquainted with the facts of the case or the witnesses. (viii) The petitioner shall neither involve himself nor shall be abet the commission of any offence. The involvement or abetting in any offence, shall entail cancellation of pre-arrest bail, automatically. (ix) It is clarified that violation of any of the conditions imposed hereinabove shall entail cancellation of bail automatically. (x) The respondents are at liberty to move this Court for modification or cancellation of bail, if circumstances, so necessitate or in case of violation of any of the conditions mandated herein.” 3. The matter was then listed on 16.2.2024, when the State Authorities were directed to file the status report. On 4.3.2024, status report was filed by the State Authorities/ Prosecution before this Court. 4. Heard Mr. Virender Thakur, Learned Counsel for the petitioner and Mr. Ajit Sharma, Learned Deputy Advocate General for the respondent-State. 5. This Court is conscious of the fact that normal principle of law is that bail is a right and jail is an exception and pre-conviction incarceration cannot form basis for curtailing the liberty of an accused. 4. Heard Mr. Virender Thakur, Learned Counsel for the petitioner and Mr. Ajit Sharma, Learned Deputy Advocate General for the respondent-State. 5. This Court is conscious of the fact that normal principle of law is that bail is a right and jail is an exception and pre-conviction incarceration cannot form basis for curtailing the liberty of an accused. While considering the prayer for pre-arrest bail, a balance has to be carved out between the liberty of an accused vis-a-vis danger to the society, in case bail is granted, amongst other factors in facts of each case, in the background of the broad parameters, laid down by the Hon’ble Apex Court in case of Gurbax Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 , reiterated in Sushila Aggarwal vs. State (NCT of Delhi), (2020) 5 SCC 1 and now recently in judgment dated 29.08.2023, titled as State of Haryana vs. Dharamraj, SLP (Crl.) No. 2256 of 2022, which reads as under: “(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. (viii) danger, of course, of justice being thwarted by grant of bail.” 6. This Court is also conscious of the fact that while considering the prayer for pre-arrest bail, the evidence is not to be evaluated/examined/gone into as the delving into the merits of the case or the evidence, shall result in mini trial at this stage, which shall prejudice either the accused or the prosecution. In this situation, this Court proceeds to test the veracity of the claim as to whether there is any prima facie or reasonable grounds to believe that the accused has committed the offence in the background of other parameters mandated by law in cases of Gurbax Singh Sibbia, Sushila Aggarwal and Dharamraj (supra). 7. In this situation, this Court proceeds to test the veracity of the claim as to whether there is any prima facie or reasonable grounds to believe that the accused has committed the offence in the background of other parameters mandated by law in cases of Gurbax Singh Sibbia, Sushila Aggarwal and Dharamraj (supra). 7. In the background of the facts, the status report and the mandate of law referred to above, this Court is of the considered view that interim bail granted on 13.2.2024 needs to be made absolute, for the following reasons: (i) The status report reveals that elections to Nagar Panchayat, Chirgaon, were held on 8.4.2021, in which candidates from two different groups were declared elected. The bail petitioner is one of the elected candidates in aforesaid elections. Post her election, as member of Nagar Panchayat on 8.4.2021, a complaint pointing out encroachment by the grand-father and then by the father of the bail petitioner on government land was submitted to the government functionaries, after a gap of more than two years with ulterior motives at the instance of her political rivalries, who remained unsuccessful in these elections vis-a-vis the bail petitioner who was elected, just to victimize her. (ii) The rival fractions, after declaration of result of Nagar Panchayat, Chirgaon in April 2021, had concocted a story in November, 2021, so as to implicate the bail petitioner falsely on extraneous-political considerations. (iii) The bail petitioner appears to be falsely implicated, when, after her marriage, the bail petitioner severs relations with her maternal father and grand-father and the alleged encroachment, if any, by the father/grand-father is yet to be proved/established after following the due process of law. Moreover, once the encroachment is yet to be established after associating all concerned coupled with the fact that the bail petitioner has never visited the Patwarkhana nor has she met, the part time employee, namely Virender Kumar, therefore, the prima facie accusation is not made out against the petitioner. (iv) The prima facie accusation becomes highly doubtful when, the bail petitioner being a Ward Member of Nagar Panchayat has never visited Patwarkhana nor has she ever met Virender Kumar, a part time worker in the Patwarkhana but, who was allegedly managed by her opponents in elections to give false statement just to implicate her falsely. (iv) The prima facie accusation becomes highly doubtful when, the bail petitioner being a Ward Member of Nagar Panchayat has never visited Patwarkhana nor has she ever met Virender Kumar, a part time worker in the Patwarkhana but, who was allegedly managed by her opponents in elections to give false statement just to implicate her falsely. (v) The status report reveals that the aforesaid FIR originated from the statement made by Virender Kumar, who was deployed as part time worker in Patwarkhana and whose services were disengaged. For reasons known to the authorities, once the regular Patwari namely Rajinder Kumar had given the office keys to Virender Kumar, who was not authorized to retain keys, his role becomes important and veracity of the statement, made by Virender Kumar, as referred to above, becomes unworthy of belief and the same is to be looked into at the stage of trial. (vi) The alleged disclosures in the mobile phone of Virender Kumar, erstwhile part time worker, whether, relate to the bail petitioner or not, is a matter to be looked into at the stage of trial, when the bail petitioner has specifically denied meeting Virender Kumar as aforesaid. (vii) In the status report, State Authorities have referred to an earlier case No. 82/18 dated 15.8.2018 registered under Sections 448, 380, 147, 149 IPC and Section 3(1)(s) of SC & ST Act, which cannot be made the basis for opposing the claim for pre-arrest bail, when, this matter stood compromised and then nullified by this Court. (viii) The status report does not reveal any apprehension from the bail petitioner regarding danger to any person in case of release. Moreover, no apprehension regarding the bail petitioner fleeing or threatening witnesses or tampering evidence is borne out. (ix) Even, nothing adverse regarding her character or antecedents, position has been spelt out in the status report by the State Authorities. Moreover, the nature of the alleged offence in the FIR is not grave and more so when the accusation is not prima facie made out, at this stage. (x) Learned State Counsel has stated that in compliance to the orders dated 13.2.2024 passed by this Court, the bail petitioner has joined investigation and her custodial interrogation is not required by the Investigating Agency/State. 8. The observations made hereinabove, shall neither be constructed as an expression of opinion nor findings on merits. 9. (x) Learned State Counsel has stated that in compliance to the orders dated 13.2.2024 passed by this Court, the bail petitioner has joined investigation and her custodial interrogation is not required by the Investigating Agency/State. 8. The observations made hereinabove, shall neither be constructed as an expression of opinion nor findings on merits. 9. In view of the above discussion, and in the facts and circumstances of the instant case, the interim bail dated 13.2.2024, granted by this Court, is made absolute, with the direction to the bail petitioner to continue to participate with the investigation as and when called, in accordance with law. 10. Petition stands disposed of accordingly.