Shivani Gupta vs State of H.P.

Surinder Singh, J.—The Petitioner is the wife of an advocate and her father-in-law Shri Gian Chand Gupta is also a Senior Advocate, practicing in Shimla. She apprehends arrest from the police in a case registered u/s 436, 457 and 380 of the Indian Penal Code, in Police Station Boileauganj, in terms of FIR No. 42/10 dated 14.2.2010.

Precisely the facts are that the Petitioner and her husband are living with her father-in-law in their own house at "Kachi Ghati" (Shimla). Ms. Suman was a maid servant in the house of the Petitioner at Kachi Ghati (Shimla). She left her job about 4/5 months ago from the date of alleged incident, thereafter Ms. Anita accused was employed in her place by the father-in-law of the Petitioner.

The Courts were closed on account of the winter vacation. On 9.1.2010, the parents-in-law of the Petitioner were on sojourn to Panchkula during the vacation, leaving behind the Petitioner and her husband.

On 13th February, 2010, the Petitioner and her husband locked the premises and also went to Panchkula to join her parents-in-law. During the intervening night of 13th/14th February, 2010, complainant Shri Gian Chand Gupta, received a telephonic message from his neighbour Shri Tushar, on the mobile of his wife, informing that the fire had broken out in their house at Shimla and the sounds of explosion was also heard. A neighbours came to the spot and found Ms. Suman in an injured condition having burnt skin and she was removed to the hospital. Fire Brigade was informed.

Someone from the locality also informed local police about the said incident. SHO Gurdip reached the spot around 1.30 a.m.

Complainant also rushed to Shimla and reached in his house at 3.45 a.m. and noticed that some of the portion of house was totally damaged. Almirahs and lockers were opened, but these were empty. According to him, the cash worth Rs. 2 lacs and jewellery worth Rs. 7 lacs was found missing alongwith three FD Rs amounting to Rs. 1.5 lacs in his name, FD Rs of Rs. 1 lacs in the name of his wife, one in the name of his grandson Abhyudya worth Rs. 50,000/- and a FDR for a sum of Rs. 30,000/- in the name of Manju were found missing besides the insurance policies and mutual fund certificates. Everything in the bed room facing towards valley was burnt. Various valuable articles like Colour Television and Washing machine etc. were also destroyed.

Police also noticed Anita co-accused hiding herself between the two water tanks in the neighbourhood. She was also having burn injuries. On seeing the gathering, she tried to escape, but she was apprehended. She disclosed her identity as Anita alias Kesar. She was also removed to the hospital for treatment. Her burnt clothes were taken into possession. Anita was interrogated by the police. She disclosed that she alongwith Suman entered the house of Shri Gian Chand Gupta to commit theft. They had already prepared the duplicate keys and also arranged for 20 liters of petrol to put the house on fire after committing the theft. Thereafter they sprinkled petrol inside the house. The moment Suman co-accused lit the match box, there was an explosion, which caused damage to the doors and the windows and both the aforesaid ladies got entrapped in fire in the house. On her interrogation, she further revealed that the Petitioner had given Rs. 5,000/- to each of them to commit the above crime. Out of Rs. 5,000/- Rs. 2464/- were recovered from her. She also disclosed that the lockers and almirahs in the house were broken open by Shivani Petitioner earlier. Police also recovered Rs. 3180/- from the burnt clothes of Suman. Suman has sustained 60% burn injuries and is still hospitalized. Police also pressed into service the team of forensic science experts. Their report is yet awaited.

The Petitioner was granted interim bail by this Court, vide order dated 18.2.2010. She was interrogated by the police, but nothing material could be extracted.

Learned Counsel for the Petitioner submitted that she has been accused as a conspirator by a co-accused, which is not a legal evidence and further that it is not understood as to why she would commit the theft of the cash and ornaments from her own house.

On the other hand, Shri J.S. Rana, learned Assistant Advocate General sought the custodial interrogation of the Petitioner, keeping in view the nature and gravity of the circumstances to find out the truth.

After hearing the parties, I do not wish to comment so far on the evidence collected by the Investigating Agency and the necessity of custodial interrogation of the Petitioner, however, taking into consideration the nature and gravity of the circumstances, liberty of Petitioner vis-�-vis fair and fearless investigation of the case, I do not find it to be a fit case for the grant of discretion u/s 438 of the Code. Custodial interrogation is more meaningful than questioning a suspect who is armed with a favourable order or anticipatory bail.

It is now well settled that power to grant anticipatory bail should be exercised with due and circumspection, but at the same time, the court should not hesitate to use the discretion where it is justified in the facts and circumstances of the case.

13.However, considering the facts, nothing has been recovered from Petitioner so far and there is no break through in the matter with respect to the theft of the property despite the fact, Suman and Anita both were found on the spot immediately after the alleged incident.

Keeping in view the entire spectrum of the case, in my view it would only be fair and reasonable if the period of custodial interrogation is fixed. Therefore, the Petitioner is directed to surrender before the Superintendent of Police, Shimla on 4.3.2010 at 11 a.m. The Superintendent of Police shall depute a lady police officer forthwith not below the rank of Inspector, failing which the police officer, not below the rank of Dy.S.P. for her interrogation within 2 days. The interrogation of the Petitioner shall be done w.e.f. 11 a.m. to 6 p.m. on 4.3.2010 in the presence of her counsel, if she so desires, the close relative also.

On the completion of the interrogation, the Petitioner shall be released on bail on 5.3.2010 at 6 p.m. on her furnishing the bonds in the sum of Rs. 10,000/- with two sureties of the like amount, to the satisfaction of the Investigating Officer.

This order shall be subject to the conditions that the Petitioner:

(i) shall make herself available for interrogation as and when required by the Investigating Officer after the expiry of period of her interrogation;

(ii) shall not tamper with the prosecution evidence in any manner nor shall make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts truly to the court or to any police officer;

(iii) shall cooperate with the investigation of this case to take it to the logical end.

The Petitioner shall not misuse her liberty of bail in any manner whatsoever or violate any condition imposed upon her.

Needless to say that the Investigating Officer shall interrogate the Petitioner as per the guidelines laid down by the Apex Court and also this Court from time to time and the provisions of the Code of Criminal Procedure.

Application stands disposed of.

Order Dasti to parties.