Shashi Gupta vs Delhi State
1968 Latest Caselaw 209 Del

JUDGMENT

Om Parkash, J.

(1) This is an application under section 498, Criminal Procedure Code, for the grant of bail. The petitioner is being proceeded against under sections 307/302/109, 1. P. C. in connection with the burning to death of three children of Tek Chand (Chanana) and causing injuries by burning to Tek Chand himself, by A. B. Gupta, the husband of the petitioner. The petitioner had also previously applied for the grant of bail. That application was rejected by me on the 13th August, 1968. After rejection of that application, the challan has been put up in the committing court against the petitioner and A. B. Gupta and evidence is being recorded.

(2) The case for the prosecution, in brief, is that the petitioner was serving as a Nurse in the Dispensary, attached to the Government of India Press, New Delhi. Tek Chand was serving in the same Dispensary as a Dispenser. Btoh of them were working in the day-shift for more than two years. Tek Chand had developed illicit relations with the petitioner. In May, 1968, Tek Chand was transferred to the night-shift. Tek Chand represented to the authorities that he should be re-transferred to the day-shift in which the petitioner was working. In that representation, Tek Chand had made allegations that the Doctor in charge of the Dispensary and toher clerical staff had evil intentions towards the petitioner. The petitioner had promised to support the allegations made by Tek Chand in case any enquiry was held in the matter. Later on, the petitioner had resoled from the promise on account of the fear of bad name which support to the allegations would have brought her. Tek Chand felt frustrated and angry. The petitioner and Tek Chand had querrelled on the 17th June, 1968, and Tek Chand had threatened that he would expose the petitioner's had character to the gaze of public. According to the prosecution, the petitioner and her husband, A. B. Gupta, had decided to take revenge for the threat held out by Tek Chand. It is alleged that on the 18th June, the petitioner had applied in her office for a loan of Rs. 800.00 and on 19th June, she had written a registered letter to M. L. Bedi, her relative at Ludhiana, requesting him to send a cheque of Rs- 2,000.00. It was stated in the letter that the petitioner was in distress. The further allegation of the prosecution is that A. B. Gupta had visited the house of Tek Chand on the morning of the 21st June and had also done so on an earlier occasion. On 21st June, there was some talk about some papers between A. B Gupta and Tek Chand. A. B. Gupta had asked Tek Chand to come to his office in Connaught Place for the papers. Tek Chand had gone there at about 2 P. M . but the papers were nto shown to him. A. B. Gupta had informed him that the key of the drawer in which the papers were lying had been misplaced. The prosecution alleges that on the night of the 21st June at about 11-30 P. M., A. B. Gupta had gone to the house of Tek Chand, who along with his children was lying outside the house, and that A. B. Gupta had thrown kerosene oil on the sleeping children and Tek Chand and had set fire and had then run away. A. B. Gupta was seen running away by Tek Chand, his wife and Kanwar Pal and Pancham Singh. Tek Chand had also pursued A. B. Gupta for some paces, but had to come back on account of the pethetic cries of his children for help.

(3) The neighbours had removed the three children and Tek Chand to Safdarjang Hospital. The three children died there on account of the burn injuries. Tek Chand was saved.

(4) The petitioner had applied for leave for the 22nd June from the Dispensary and had on that date sent a telegram to her brtoher, Prem Prakash, at Jullandar asking him to come immediately as they were in trouble.

(5) One of the neighbours had informed the police about the incident. The police arrived on the spto and commenced investigation. The petitioner and her husband, A. B. Gupta, were nto traceable; they were declared absconders.

(6) The petitioner and her husband were arrested at Katra in the state of Jammu and Kashmir on the 3rd July. 1968. The prosecution case is that Radhe Sham and Amar Singh had gone to Katra on a pilgrimage. Radhe Sham was a neighbour of the petitioner. Radhe Sham had seen the petitioner and her husband in the 'dharamshala' at Katra. He told Amar Singh that the petitioner and her husband were concerned in the case of burning of three children. Amar Singh had asked Radhe Sham to inform the police. Radhe Sham had left for the police station. The petitioner and her husband had tried to leave the place, but Amar Singh had challenged them and had comfronted them with the allegation that they were concerned in the case of burning of the three children. The petitioner and her husband, A B. Gupta, had admitted that they had committed a sin in burning the three children and begged to be pardoned. In the meanwhile, the police had come and had arrested the petitioner and her husband, who were brought to Delhi.

(7) The principles for the grant or refusal of bail are well Settled. The refusal or grant of bail is discretionary with the Court. The discretion is to be exercised on sound judicial principles. Grant of bail is the rule and its refusal an exception. But where there is reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life, the bail should be refused. In considering an application for bail, a Court is nto required to conduct a preliminary trial of the case and consider the probability of the accused being found guilty or innocent. The Court, while deciding such application, will be traversing beyond its proper ambit and would be exceeding the limits of its function if it engages itself in discovering the guilt or innocence of the accused-applicant, which can only be determined at the trial stage. The Court may, however, incidentally turn to the evidence with a view to examining the question of allowance or refusal of bail with reference to the principles governing release or detention pending the proceedings. While deciding an application for bail, the Court is to take into consideration the enormity of the charge, the nature of the accusation, the severity of the punishment which the conviction will entail, the nature of the evidence in support of the accusation, and several toher factors vide Rao Harnarain Singh Sheoji Singh and tohers, v. The State.

(8) The application for bail made by the petitioner is to be decided in the light of the above principles. The death of the three children of Tek Chand on account of injuries from burns and injuries caused to Tek Chand are established by the evidence of Tek Chand and medical evidence. The charge against the petitioner is that she had abetted the crime committed by her husband, A. B. Gupta. The offence is punishable with death or imprisonment for life. There is no direct evidence of any eye witness that the petitioner had aide the commission of the crime. The prosecution relies on circumstantial evidence.

(9) The first circumstance is the mtoive. The petitioner had illicit connection with Tek Chand as has been deposed to by Tek Chand. There is also a letter, dated 7th/8th February, 1967, of the General- Secretary, Clerks Association, Government of India Press New Delhi. This letter shows that there were illicit connections between the petitioner and Tek Chand. The learned counsel for the petitioner contended that the letter has nto been proved and it may be altogether a false one. The letter is to be approved at the trial and, if proved, it will be taken into consideration, toherwise rejected. At this stage, the allegation. whether the letter is a false or true one cannto be gone into. Tek Chand has stated that he had been transferred from the day-shift to the night shift. This statement is supported by documentary evidence. Tek Chand had represented against his transfer and had requested to be retransferred to the day-shift in which the petitioner was working. The case for the prosecution is that the petitioner had first promised to support the representation of Tek Chand which contained allegations against the hospital staff, but had later on resoled from the promise, and that this had angered Tek Chand who had threatened the petitioner that he would expose her character to the public.

(10) The second circumstance relied upon by the prosecution, is that after Tek Chand had held out a threat to the petitioner, she had on the 18th June, applied for loan for Rs. 800.00 to the office and had also sent a registered letter to M. L. Bedi requesting for a loan of Rs. 2,000.00. The inference, sought to be drawn, by the prosecution from these requests of loan is that the petitioner and her husband were making preparations to abscond after the crime for which purpose they required money. The allegations that the petitioner had applied for loan from her office and had also written to M. L. Bedi for a loan of Rs. 2,000.00 were nto denied on behalf of the petitioner. But the inference sought to be drawn by the prosecution from the requests of loan was vehemently repudiated. The explanation, on behalf of the petitioner, was that money was required for constructing and repairing the house as the petitioner could nto pull on with her mtoher-in-law and brtoher-in-law who were pressing the petitioner to quit their house and set up her own house, and that as monsoon was approaching, the petitioner was anxious that the house may be completed as early as possible. Affidavits of two neighbours have been filed with the application of bail stating that the house was still incomplete. It is further explained, on behalf of the petitioner, that the husband of the petitioner had gto two books printed, and that money was required for discharging the dues of the printing presses. At this stage, it will nto be proper to pronounce finally on the validity of the explanation put forth on behalf of the petitioner. But the letters of the printing presses do nto indicate that the presses were harrassing the husband of the petitioner for payment of the printing charges and there was any urgent necessity for borrowing. The documents from the Navin Press filed with the application of bail show that in all an amount of Rs. 338.00 was due from A. Bhushan. Out of this, a sum of Rs. 100.00 had been paid on the 8th January, 1968, and antoher sum of Rs. 100.00 was paid on the 11th March, 1968. The letter of the press, dated the 15th October, 1968, shows that only an amount of Rs. 138.00 is still due. The Navin Press did nto press A. Bhushan for payment of the balance. On the toher hand, even in the letter, dated the 15th October, 1968. which presuambly was obtained long after the occurrence, the press had very politely asked for the payment of the balance. A letter, dated 15th June, 1968, from antoher press. Lakshmi Press, has been filed. This letter directs A. Bhushan to pay the amount of Rs. 706.00 failing which legal action would be taken. The letter states that Shri A. Bhushan had on the 13th June, 1968, promised to pay the amount by the 3rd week of June, 1968, and that he should confirm that promise in writing. It is nto easy to understand why no writing was obtained from A. Bhushan on the 13th June and where was the necessity of writing a letter two days after for confirmation of the promise of payment. No bill of the Lakshmi Press has been produced. Antoher significant fact is that in the letter addressed to M. L. Bedi. the petitioner did nto mention that she needed money for the construction of house and payment of printing charges. On the toher hand. she had stated in the letter that she was in trouble, and that she could nto explain her distress. The petitioner was writing the letter to her relative. Ntohing was easier than to convey to the relative, in the letter, the purpose- for which the loan of Rs. 2,000.00 was required.

(11) The 3rd circumstance relied upon by the prosecution is that on the 22nd June, the petitioner had taken leave from her office and had sent a telegram to her brtoher, Prem Parkash Kapur at Jullundur asking him to come immediately. The Handwriting Expert has opined that the writings in the telegram are in the handwriting of the petitioner. The explanation offered, on behalf of the petitioner, was that her husband had asked her on the telephone to send the telegram as he was terribly upset by information conveyed by the friends of Tek Chand that he (the husband) would be implicated in the murder of the children of Tek Chand. The telegram shows that there was some trouble with the petitioner and her husband. Taking into consideration the fact that the petitioner and her husband were nto traceable after the 22nd June, the day on which the telegram was sent, the telegram constitutes a link in the chain of incriminating circumstances.

(12) The fourth circumstance relied upon is that the petitioner and her husband had absconded after the occurrence and were arrested through sheer chance on the 3rd July, 1968, at Katra in Jummu & Kashmir State. This fact is deposed to by Radhe Sham and Amar Singh, witnesses, in their statements, before the police.

(13) The fifth circumstance is that the petitioner and her husband had confessed to Amar Singh that they had committed the sin of burning three children and begged pardon. Amar Singh has nto been yet examined as a witness. If his evidence is believed by the trail Court, it will be a very damaging circumstance against the petitioner.

(14) The prosecution also places reliance on the statement of Kali Charan, who runs a shop of a barbar near the quarter of the petitioner. Kali Charan has stated that he had seen the petitioner and her husband coming out of their house at about 10.15 P. M on the night of the occurrence. and that A. B, Gupta had one 'debba' in his hand.

(15) It may be pointed out that the petitioner has gto relatives who can look after her defense and her children.

(16) The conclusion from the above discussion is that there are reasonable grounds for believing that the petitioner is connected with the offence for which she is being proceeded against. The offence is punishable with death or imprisonment for life. The application for bail is, therefore, to be dismissed.

(17) The authority State v. Maheboob Alt Khan Nawab Ali Khan has no application to the present case. In that authority, their Lordships of the Bombay High Court had criticised the Magistrate for nto applying his mind to the evidence which was available at that stage of the case while granting bail to the accused persons.

(18) Ntohing contained in this order will be regarded as an expression of opinion on the merits of the case and will nto stand in the way of the Committing Magistrate and the trial Court, if the case is committed to the Sessions, from coming to their own conclusions on the evidence which may be adduced before them.

(19) For the reasons stated above, the application is dismissed.