Indu Bala vs State of Himachal Pradesh

Sandeep Sharma, J.

1.Bail petitioner namely Indu Bala, has approached this Court in the instant proceedings, filed under Section 438 of Cr.PC, for grant of anticipatory bail

in respect of FIR No. 38/18 dated 13.4.2018, under Sections 498- A, 304-B & 34 IPC and Section 4 of Dowry Prohibition Act, registered at PS

Nadaun, District Hamirpur, H.P.,

Sequel to order dated 8.5.2018, SI Rajesh Kumar, I/O P.S. Nadaun, District Hamirpur, H.P., has come present along with records. Record perused

and returned. Mr. Dinesh Thakur, learned Additional Advocate General, has also placed on record status report prepared on the basis of investigation

carried out by the Investigating Agency.

Careful perusal of record/status report reveals that complainant namely Rajesh Kumar, alleged that he had solemnized marriage of his daughter

namely Kanchan Sharma, in the month of August, 2016, with one Pardeep Kumar, S/o Dhani Ram, as per Hindu Rites. In December, 2017, Kanchan

Sharma, gave birth to one baby boy, whereafter she came to her maternal house and disclosed to her parents that her in-laws harass/torture her for

dowry. Complainant further alleged that his daughter also disclosed to him that her father-in-law, mother-in-law, sister-in-law and brother-in-law, not

only mentally torture her but persistently, ask her to bring dowry. On 13.4.2018, complainant gave a telephonic call to the father-in-law of his daughter

(Kanchan Sharma), to know the well being of his daughter, but he was informed that his daughter (Kanchan Sharma), has been burnt. On the basis of

aforesaid, complaint, FIR detailed herein above, came to be lodged against the accused persons named in the FIR including the present bail petitioner,

who happened to be sister-in law of the deceased Kanchan. As per investigation, present bail petitioner was married in October, 2010, and since then,

she has been residing with her husband namely Raman, who works in M.E.S at Yol Cantt. Investigation further reveals that bail petitioner though

resides at Yol Cantt, District Kangra, but she oftenly visits her parents house at Kotla. Lastly, present bail petitioner had come to her maternal house

on 27.12.2017, at the time of delivery of the deceased Kanchan.

Mr. T.S. Chauhan, learned counsel representing the petitioner while referring to the record/status report vehemently argued that no case, if any, is

made out against the bail petitioner, because there is nothing in the investigation, from where, it can be inferred that on the date of alleged incident, bail

petitioner was at Kotla with her parents. He further stated that there is no specific evidence available on record suggestive of the fact that present bail

petitioner ever harassed/tortured the deceased for dowry. He further contended that since bail petitioner has already joined the investigation in terms

of order dated 8.5.2018, there is no occasion for her custodial interrogation and as such, she may be released on bail.

Mr. Dinesh Thakur, learned Additional Advocate General, on instructions from Investigating Officer, who is present in Court, though fairly admitted

that bail petitioner has joined the investigation in terms of order dated 8.5.2018, but opposed the prayer for grant of bail made on her behalf by stating

that keeping in view the gravity of offence allegedly committed by the bail petitioner, she is not entitled to be released on bail. Mr. Thakur, further

stated that though it has come in the investigation that present bail petitioner was married and staying at place called Yol Cantt, District Kangra, H.P.,

but used to visit her parental house frequently and during this period, she had been harassing the deceased Kanchan, for not bringing appropriate

dowry. Mr. Thakur, fairly admitted that at this stage, nothing is to be recovered from the bail petitioner and in case, this Court intends to enlarge her on

bail, she may be enlarged on bail subject to condition that she shall always make herself available for investigation as well as trial as and when

required by the Investigating Agency.

Having heard the learned counsel for the parties and perused the record, this Court finds that present bail petitioner, who happened to be sister-

inâ€"law of the deceased Kanchan, resides at Yol Cantt. since year, 2010 with her husband Raman, who works in M.E.S at Yol Cantt. Similarly,

there is nothing on record suggestive of the fact that on the date of alleged incident, present bail petitioner was present at Kotla, where allegedly

deceased Kanchan, was burnt. Though, aforesaid aspects of the matter are to be considered and decided by the court below on the basis of the

evidence collected on record by the prosecution, but this Court taking note of the fact that bail petitioner has already joined the investigation as has

been fairly admitted by the learned Additional Advocate General and nothing is required to be recovered from her, sees no reason for custodial

interrogation of the bail petitioner and as such, she deserves to be enlarged on bail.

Needless to say, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by the prosecution by leading cogent and convincing

evidence. It is well settled that till the time a person is not found guilty, one is deemed to be innocent. 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 has 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.

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.

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.

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.

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.

The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 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.â€​

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.â€​

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.

Consequently, in view of the above, order dated 8.5.2018, passed by this Court, is made absolute, subject to the 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 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.

It is clarified that if the petitioner misuses her 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.

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 accordingly disposed of.