Sishu Pal vs State Of Himachal Pradesh

Sandeep Sharma, J

Bail petitioner Sishu Pal, who is behind the bars since 16.9.2019, has approached this court by filing instant petition under S.439 CrPC for grant of regular bail in FIR No. 176, dated 15.9.2019, under Ss. 304B and 306 IPC, registered at Police Station Ghumarwin, Bilaspur.

Status report filed by the respondent State pursuant to order dated 20.5.2020 reveals that on 13.3.2019, Police received information with regard to death of deceased Asha Devi, who allegedly committed suicide. Police informed the parents of the deceased with regard to alleged incident, whereafter, on 15.9.2019, complainant Jagpal, father of deceased got his statement recorded at Police Station Ghumarwin alleging therein that since the present bail petitioner had been harassing his daughter for bringing less dowry, he has reason to believe that his daughter committed suicide after being maltreated by the bail petitioner and as such, appropriate action may be taken against him. After competition of codal formalities, Police lodged FIR detailed herein above against the bail petitioner on 16.9.2019 and since then he is behind the bars.

Mr. Sudhir Bhatnagar, learned Additional Advocate General while inviting attention of this court to the documents placed on record, contends that though the Challan stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioner but having taken note of the offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and as such, present petition may be dismissed at this stage. Mr. Bhatnagar, while making this court peruse the statement of the complainant and one Jhanjan, who had played the role of middlemen in getting marriage of bail petitioner solemnised with the deceased, argues that the bail petitioner had been maltreating the deceased on account of bringing less dowry. He contends that it stands duly established on record that prior to the alleged incident, many complaints were lodged by the deceased against the bail petitioner and for considerable time, bail petitioner and deceased were staying separately on account of certain differences. Mr. Bhatnagar, learned Additional Advocate General further contends that as per the statement of the sister of the deceased, bail petitioner had demanded one Bullet bike, from the deceased before the alleged incident. Lastly Mr. Bhatnagar, learned Additional Advocate General contends that since the bail petitioner hails from the State of Uttar Pradesh, it would be difficult to secure his presence during trial, in case he is ordered to be enlarged on bail.

Having heard learned counsel for the parties and perused the material on record, this court finds that the FIR came to be lodged at the behest of the father of the deceased, who alleged that the deceased committed suicide on account of constant mental torture by the bail petitioner. Though the investigation reveals that after marriage inter se bail petitioner and the victim prosecutrix, certain differences cropped inter se them and they started residing separately, but before the alleged incident, they were living together at Kuthera. It is also revealed from record that the deceased had lodged some complaint with the Police Station Moradabad, but same was subsequently withdrawn on account of compromise inter se parties. In the case at hand, no independent witness has been associated by the Police and entire case of the Police is based on the statements of interested witnesses, who in unison have alleged that the deceased was being maltreated by the bail petitioner for bringing less dowry. Allegations with regard to demand of dowry by the bail petitioner is yet to be proved on record in accordance with law by the investigating agency and at this stage, mere statements of interested witnesses may not be sufficient to conclude guilt, if any of the bail petitioner under Ss.304B and 306 IPC. Police have not bothered to associate any witnesses from the nearby locality to buttress the allegations levelled by the complainant and other witnesses, who in one way or the other are related to the deceased. None of the witnesses from the locality have stated to the police that the deceased was being tortured physically and mentally by the bail petitioner, prior to the alleged incident.

Though the aforesaid aspects of the matter are to be considered and decided by the learned trial Court in the totality of evidence collected on record by the investigating agency but having taken note of the aforesaid glaring aspects of the matter, this Court sees no reason to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially when he has already suffered for more than six months. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioner being enlarged on bail, he may flee from justice, can be best met by putting the bail petitioner to stringent conditions

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 held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held 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."

In Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49, Hon'ble Apex Court has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that 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.

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 also, normal rule is of bail and not jail. Apart from above, 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 Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the various principles to be kept in mind, while deciding petition for bail i.e. prima facie case against the accused, nature and  gravity  of  offence,  severity  of  punishment,  likelihood  of repeating of the offence by accused etc.

In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to furnishing bail bonds in the sum of Rs.2,00,000/- with one local surety in the like amount, to the satisfaction of the Magistrate available at the station, besides the following conditions:

(a) He shall make himself 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) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) He 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) He shall not leave the territory of India without the prior permission of the Court.

(e) He shall surrender passport, if any, held by him.

It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, 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 petition alone.

The petition stands accordingly disposed of.