Himachal Pradesh High Court

(Presently In Judicial Custody vs Unknown on 28 December, 2021

Bench: Sandeep Sharma

    IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                ON THE 28th DAY OF DECEMBER, 2021
                            BEFORE
       HON'BLE MR. JUSTICE SANDEEP SHARMA
          CRIMINAL MISC.PETITION (MAIN) No.2183 of 2021




                                                           .

    Between:-

    MRS. ASHA RANI





    W/O SHRI GOPAL KRISHAN
    AGE ABOUT 51 YEARS
    RESIDENT OF VILLAGE TYAI,
    PO CHAK SARAI, TEHSIL AMB, DISTRICT UNA HP





    (PRESENTLY IN JUDICIAL CUSTODY
    AT DISTRICT JAIL BANGARH, DITT. UNA, H.P.)
                                                 ......PETITIONER

    (BY MR. MOHIT THAKUR AND

    MR. PAWAN GAUTAM, ADVOCATES)



    AND



    STATE OF HIMACHAL PRADESH.

                                                 ......RESPONDENT




    (BY MR. DESH RAJ THAKUR,





    ADDITIONAL ADVOCATE GENERAL
    WITH MR. NARINDER THAKUR,





    AND MR. KAMAL SHARMA,
    DEPUTY ADVOCATE GENERAL

    ASI Surender Kumar,
    Police Station Amb,
    district Una, Himachal Pradesh

    Whether approved for reporting?


                This petition coming on for orders this day, the Court




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                                        2


    passed the following:

                                     ORDER

Bail petitioner namely Smt. Asha Rani, who is behind the

bars since 6.8.2021, has approached this Court in the instant

proceedings filed under S.439 Cr.PC for grant of regular bail in case

FIR No. 145, dated 6.8.2021, under S 302/34 IPC and S. 25 of the

Arms Act, registered at Police Station Amb, District Una,Himachal

Pradesh.

2. Pursuant to orders dated 16.11.2021 and 10.12.2021,

respondent-State has filed status report. ASI Surender Kumar, PS Amb

has come present with the record. Record perused and returned.

3. Close scrutiny of status report/record reveals that on 6.8.2021,

complainant Mehar singh got his statement recorded under S.154

Cr.PC, alleging therein that on 6.8.2021, at 6.00 PM, when he was

going to Tyai after purchasing cattle feed, person namely Gopal

Krishan was threatening the people while carrying a double barrel gun.

Above named complainant further alleged that Gopal Krishan dared the

people present on the spot to touch the mesh wire put around his

fields. Person namely Surjeet Singh, Ashok Kumar and Vikram Singh

were also standing near the fence and when Surjeet Singh touched the

fence, Gopal Krishan, fired at him, as a consequence of which, he fell

down on the ground. Complainant also disclosed to the police that wife

of Gopal Krishan, i.e. present bail petitioner was also present at the

spot and was carrying envelope/bag containing live cartridges.

Complainant alleged that Gopal Krishan, after having shot Surjeet

Singh, again loaded his gun after taking live cartridges from his wife

Asha Rani. Record reveals that there was some land dispute inter se

Gopal Krishan and other local people and prior to the alleged incident,

Kanungo demarcated the land and fixed the pakka points. Apparently,

accused Gopal Krishan and present bail petitioner were not happy with

the demarcation and some altercation took place inter se parties

present at the spot. In the aforesaid background, FIR as detailed

hereinabove came to be lodged against Gopal Krishan and present bail

petitioner Asha Rani, on 6.8.2021 and since then they are behind the

bars. Prior to filing the petition at hand, bail petitioner had approached

learned Additional sessions Judge Una, Circuit Court at Amb, for grant

of regular bail, but such prayer of her was rejected vide order dated

21.10.2021. Challan stands filed in the competent court of law and

nothing remains to be recovered from the bail petitioner as such, she

has approached this court for grant of regular bail.

4. On 10.12.2021, learned counsel representing the petitioner

submitted before this Court that there is none in the house of bail

petitioner to take care of her old aged mother-in-law and as such, this

Court vide aforesaid order, directed the investigating officer to verify

that how many people reside in the house of the bail petitioner and is

there anyone to take care of her aged mother-in-law.

5. Pursuant to order dated 10.12.2021, investigating officer has

filed fresh status report enclosing therewith statements made by

Pradhan, Gram Panchayat Tyahi, Development Block Amb, District

Una and other respectable members of the area. Perusal of aforesaid

communication as well as statements made by persons detailed herein

above, reveals that mother-in-law of the bail petitioner is 82 years old

and there is none to take care of her. Main accused, Gopal Krishan is

the only son of the old lady and apart from him, present bail petitioner

is the only person to take care of her mother-in-law. Sons of Asha Rani,

i.e. present bail petitioner do not reside with them, rather are living

outside the State, on account of their occupation and as such, are not

in a position to take care of their old aged grandmother

6. Mr. Narinder Thakur, learned Deputy Advocate General while

fairly admitting the factum with regard to filing of challan in the

competent court of law, contends that though nothing remains to be

recovered from the bail petitioner, but keeping in view the gravity of

offence alleged to have been committed by her, she does not deserve

any leniency. Mr. Thakur, while making this court peruse the statements

recorded under S.164 Cr.PC, vehemently argued that the present bail

petitioner took active part in the alleged incident and as such, it cannot

be said that she has been falsely implicated in the case at hand. He

further argued that had present bail petitioner not provided live

cartridges to her husband, the unfortunate incident would not have

occurred and as such, she has been rightly booked under Section 302

and 34 IPC alongwith her husband. Mr. Thakur, while fairly admitting

that as per report of investigating agency there is none to take care of

mother-in-law of the bail petitioner stated that cannot be a ground to

enlarge the bail petitioner on bail, especially when there is

overwhelming evidence available on record suggestive of the fact that

she provoked and helped her husband, Gopal Krishan to fire at

deceased Surjeet Singh.

7. Having heard learned counsel for the parties, and perused

material available on record, this court finds that on the date of alleged

incident, some dispute took place inter se Gopal Krishan and other

residents of Village Tyahi on account of some boundary dispute.

Allegedly Gopal Krishan fired at Surjeet Singh with his double barrel

gun, but statement of complainant recorded under S.154 Cr.PC

nowhere suggests that Gopal Krishan fired at deceased Surjeet Singh

after being provoked by his wife or after having taken live cartridges

from his wife, Asha Rani i.e. present bail petitioner, rather, as per

statement of complainant, present bail petitioner was present on the

spot with one envelope/bag containing live cartridges and accused

Gopal Krishan, after having fired at deceased Surjeet Singh again re-

loaded his gun by taking two live cartridges from his wife. Whether

present bail petitioner was carrying live cartridges at the time of alleged

incident is a question, which needs to be determined on the basis of

totality of evidence collected on record by the prosecution. But even if,

it is presumed that she was carrying bag containing two live cartridges,

same may not be sufficient to conclude her complicity, if any, in the

alleged incident, especially when there is nothing on record to suggest

that accused Gopal Krishan fired at Surjeet Singh, after loading his gun

by taking live cartridges from his wife, Asha Rani, bail petitioner.

8. As per prosecution story, Gopal Krishan, firstly dared people

present on the spot to touch fence around his fields and thereafter he

fired at Surjeet Singh with his double barrel gun, meaning thereby

Gopal Krishan had come to the spot with loaded gun, which he

allegedly fired at Surjeet Singh. Allegedly, accused Gopal Krishan, after

having fired gun shot at Surjeet Singh, reloaded his gun by taking two

live cartridges from the envelope being carried by his wife Asha Rani,

i.e. present bail petitioner. There is no statement to the effect that the

present bail petitioner, who was allegedly present at the spot, provoked

her husband to fire at Surjeet Singh and other persons present on the

spot, rather, precise allegation against her is that she provided two live

cartridges to accused Gopal Krishan, for reloading his gun but this all

allegedly happened after accused Gopal Krishan had already shot

Surjeet Singh with his double barrel gun. If the statement of

complainant recorded under Section 154 Cr.PC is read in its entirety, it

clearly reveals that when he reached the spot, he saw present bail

petitioner standing on the spot alongwith her husband Gopal Krishan

and she was carrying one envelope/bag with her. Whether present bail

petitioner had knowledge that she is carrying live cartridges, is another

question, which needs to be determined in the totality of evidence

collected on record by investigating agency. None of the prosecution

witnesses has stated that the present bail petitioner

instigated/provoked her husband to fire gunshot at the deceased or

other persons present on the spot. Mere presence of the present bail

petitioner, who happens to be wife of Gopal Krishan, may not be

sufficient to conclude her complicity in the commission of alleged

offence and as such, there appears to be no reason for this court to let

the bail petitioner incarcerate in jail for an indefinite period during trial.

9. Challan in the case at hand, stands filed and nothing remains to

be recovered from the present bail petitioner, who otherwise being a

woman needs to be extended benefit of first proviso to S.437 Cr.PC

which enables court to grant bail to a person, who is less than the age

of 16 years,a woman or is infirm. S. 437 (1) provides that when any

person accused of, or suspected of, the commission of any non-

bailable offence is arrested or detained without warrant by an officer in

charge of a police station or appears or is brought before a court other

than the High court or Court of Session, he/she may be released on

bail, but such person shall not be so released if there appear

reasonable grounds for believing that he/she has been guilty of an

offence punishable with death or imprisonment for life. First proviso to

afore provision clearly provides that a person referred to in clause (i) or

clause (ii) of Section 437(1) Cr.P.C can be released on bail, if such

person is below the age of sixteen years or is a woman or sick or

infirm.

10. In the case at hand, present bail petitioner is 51 years old lady

and there is no direct allegation against her that she fired gunshot at

deceased Surjeet Singh, rather allegation against her is that she was

present on the spot at the time of alleged incident with one

bag/envelope containing live cartridges. Abetment and instigation, if

any, by present bail petitioner is yet to be proved by investigating

agency by leading cogent and convincing evidence and as such, it

would not be fair to curtail the freedom of the present bail petitioner for

an indefinite period during trial. Moreover, as has been taken note

herein above, there is none in the house of the present bail petitioner to

take care of her old aged mother-in-law. Pradhan and Ward Members

of Gram Panchayat Tyahi, in their statements given to the police have

stated that Archana Devi, i.e. mother of accused Gopal Krishan, and

mother-in-law of the bail petitioner, is alone at her native place and

there is none to feed her and in case prayer made in the instant petition

made by present bail petitioner is not considered, Archana Devi,

mother-in-law of the bail petitioner and mother of accused Gopal

Krishan may die of hunger and as such prayer made of behalf of the

present bail petitioner for grant of bail deserves to be accepted.

Apprehension expressed by learned Deputy Advocate General that in

the event of bail petitioner being enlarged on bail, she may flee from

justice, can be best met by putting her to the stringent conditions.

11. Otherwise also Hon'ble Apex Court as well as this Court have held

in catena of judgments, that till the time, guilt of a person is not proved in

accordance with law, he/she is deemed to be innocent.

12. 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.

3. 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.

4. 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.

5. 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.

13 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.

14 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."

15 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."

16 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;

reasonable apprehension of the witnesses

(vii) being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

17. In view of the aforesaid discussion as well as law laid

down by the Hon'ble Apex Court, bail petitioner has carved out a

case for grant of bail, accordingly, the petition is allowed and the

petitioner is ordered to be enlarged on bail in aforesaid FIR,

subject to her furnishing personal bond in the sum of Rs. 50,000/-

with one local surety, in the like amount to the satisfaction of trial

court, with 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 him/her from disclosing such facts to the Court or the Police Officer; and

.