Bhupender vs State Of Himachal Pradesh

Anoop Chitkara, J

A husband, who is in custody since 11.5.2020, went to the house of his estranged wife who lives with her parents and on reaching there forcibly

entered the room and fired multiple shots on her, has come up before this Court under Section 439 CrPC seeking regular bail.

Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 6.11.2020, Ld.

Additional Sessions Judge-II, Solan, District Solan, H.P., dismissed the petition because the accused is a habitual offender.

Para 9 of the bail petition and status report mentions the criminal history.

Briefly, the allegations against the petitioner are that in the intervening night of 10/11.5.2020, in the night around 12:00 O’ Clock, the petitioner

who is the husband of the victim, went to the house of his estranged wife who was living with her parents and on reaching there forcibly entered into

the house and fired multiple shots on her and on receiving injuries, she was brought to Regional Hospital, Solan. Based on these allegations, Police

registered the FIR mentioned above.

Mr. Ajay Sipahiya, learned counsel for the petitioner contends that during interim bail, the petitioner joined the investigation, and custodial

investigation would serve no purpose whatsoever. The incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

On the contrary, the State contends that the Police have collected sufficient evidence against the bail petitioner and the co-accused. Another

argument on behalf of the State is that the accused is a proven habitual offender. Given his past conduct, the accused is likely to repeat the offense,

the crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to society.

REASONING:

In Sunny Kapoor v State of HP, CrMPM 2168 of 2020, (Para 30 & 31), this Court after considering the relevant judicial precedents observed that

in reckoning the number of cases as criminal history, the prosecutions resulting in acquittal or discharge; or when Courts quashed the FIR; the

prosecution stands withdrawn, or Prosecution filed a closure report; cannot be included. The criminal history must be of cases where the accused was

convicted, including the suspended sentences and all pending First Information Reports, wherein the bail petitioner stands arraigned as an accused.

While considering each bail petition of the accused with a criminal history, it throws an onerous responsibility upon the Courts to act judiciously with

reasonableness because arbitrariness is the antithesis of law. Although crime is to be despised and not the criminal, yet for a recidivist, the contours of

a playing field are marshy, and graver the criminal history, slushier the puddles.

The only reason for denial of the bail is the criminal history of the petitioner and absence of the explanation about it in the bail petiton. Although, the

petitioner has mentioned about the criminal history, but he has not explained that who was the victim in such cases.

Ld. Counsel for the petitioner referred to certain statements and memos from the police report, prepared under section 173(2) CrPC, copies of

which the accused had duly received in compliance to S. 207 CrPC. However, the documents which the Ld. Counsel referred were neither filed with

the petition, nor its copies supplied to the Court and the State. Thus, the Court cannot base any finding on a document whcih is in the Counsel's brief

and not on the Court's file.

Counsel for the petitioner has also made several other arguments. Still, given that this Court is not inclined to grant bail, on the reasons mentioned

above, discussion of the same will be an exercise in futility. Any detailed analysis of the evidence may prejudice the case of the prosecution or the

accused.

Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail. The petition is

dismissed with liberty to file a new bail application.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

The petition is dismissed.