Sant Ram vs State Of H.P
2021 Latest Caselaw 837 HP

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr.MP(M) No. 200 of 2021 Reserved on: February 2, 2021.

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Date of Decision: Feb 4, 2021.

    Sant Ram                                                        ...Petitioner.
                                    Versus
    State of H.P.                                                 ...Respondent.





    Coram:
    The Hon'ble Mr. Justice Anoop Chitkara, Judge.





    Whether approved for reporting?1 NO

    For the petitioner:     Mr. Rajesh Kumar Paramar, Advocate.

For the respondent: Mr. Ashok Sharma, A.G. with Mr. Anil Jaswal & Mr.

Somesh Raj, Addl. A.Gs. and Ms. Svaneel Jaswal, Dy. A.G.

                             THROUGH VIDEO CONFERENCE

        FIR No.   Dated          Police Station                        Sections


        26/20     04.04.2020     Ramshehar, District Solan             302, 201 & 34 IPC

    Anoop Chitkara, Judge.

The petitioner, who is in custody for committing murder of Keshav Ram and then burning the dead body and showing it to be died of heart attack and lateron,

on the complaint of the sister of deceased, police registered a case of murder, which led to his arrest, has come up before this Court seeking regular bail.

2. A perusal of the petition reveals that the petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 &

15), wherein the Full bench holds that a person can directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.

3. In Para 9 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the accused.

Whether reporters of Local Papers may be allowed to see the judgment?

4. Briefly, the allegations against the petitioner are on 02.04.2020, police received a telephonic information regarding the death of Keshav Ram. Because strict

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lockdown was imposed in the nation due to COVID-19 pandemic, the police officials

of the Police Station Ramshehar told the Lamabardar Rashan Lal to follow the guidelines issued by Government of India under National Disaster Management Act,

2005. After that they cremated the body of Keshav Ram. Due to restrictions on number of persons due to grave public fear of Corona virus, hardly very few people attended the cremation. Subsequently, the family members kept the ashes in urn because due to prevailing lock down rituals and last rites could not be completed.

5. On 04.04.2020 i.e. after two days of the death came to light, Kamla Devi sister of deceased Keshav Ram informed the police that her brother died as a result of beatings administered by her daughter-in-law Chinta Devi (A-1), her brother Sukh

Dev (A-2) and another person Sant Ram (A-3).

6. Based on this information, SHO recorded the statement of complainant under Section 154 Cr.P.C. She alleged in her complaint that they are three brothers and a

sister and all of them are married. Keshav Ram was eldest. She also stated that Jagat Ram was her youngest brother. All her brothers live separately. Keshav Ram had two children a son and a daughter and both of them were married. The son named Madan

was married to Chinta Devi (A-1) and had two children. Madan had expired about 10/11 years ago. After the death of Madan initially Keshav Ram his wife Sita,

daughter-in-law Chinta Devi and grand children were staying in one room. The complainant also occasionally visited to meet them. Five six months ago, wife of

Madan Chinta Devi left the house of deceased Keshav Ram and went to her maternal home. During her stay in the house of Keshav Ram, she kept indulging in altercation. She also stated that her mother Sita i.e. wife of deceased had also left him and was staying with her son Jagat Ram in his house. Complainant stated that on 02.04.2020, during day time, she came to know about the death of her brother and that his body has been cremated. She also came to know that nobody from the area attended the cremation. She also came to know that from the side of the family of Chinta Devi (A-

1) had participated in the cremation. She alleged that her brother neither died of any illness nor of any heart attack. She came to know from the people that he has been killed by the accused persons mentioned above. She stated that she has reason for

such apprehension. Had her brother Keshav Ram died of heart attack, Chinta Devi must have informed about it.

7. Based on these allegations, the Police registered the FIR mentioned above and

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started investigation, which led to arrest of all the three accused persons and they are

in judicial custody till date.

8. During investigation, Chinta Devi made disclosure statement under Section 27 of the Evidence Act regarding the clothes she wear at the time of giving beating to

deceased Keshav Ram. She also disclosed about the concealment of urn of ashes. Pursuant to the statement police recovered these articles and sent these material to FSL for DNA. Report of the laboratory could not extract any DNA material nor

could connect anything with the accused persons.

9. Ld. Counsel for the petitioner contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

10. On the contrary, the contention on behalf of the State is that if this Court is

inclined to grant bail, then such a bond must be subject to very stringent conditions.

11. The possibility of the accused influencing the investigation, tampering with

evidence, intimidating witnesses, and the likelihood of fleeing justice, can be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional Bench held that unusually, subject to the

evidence produced, the Courts can impose restrictive conditions.

REASONING:

12. The apprehension in the mind of the complainant Kamla Devi was that firstly if

her brother had died due to any illness or heart attack, then Chinta Devi would have informed about the same. Such suspicion is baseless because as per her own statement under Section 154 Cr.P.C., Chinta Devi was staying in her maternal home for the last 5-6 months. Even the wife of the deceased was staying separately but there is no averments whether she was in touch with the deceased or not. It is that due to some behaviour issue of the deceased, he was staying lonely.

13. The next appresension in the mind of the complainant Kamla Devi was that hardly any person from the village or relatives attended the cremation. This again is an imagination totally disconnected from the ground reality.

14. The judicial notice can be taken that on 23.03.2020 onwards a very strict nation wide lock down was put in place, which led to imposition of curvew. The people

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were so afraid of Corona Virus, they were themselves confined to their homes and

under that situation death of the person would have led a fear in the villagers that whether the cause of death is COVID-19 Corona Virus. However, even the

complainant admits that daugher-in-law had attended the cremation, this shows her respect and pay her tribuate to the departed soul. On the other hand, she is languishing in jail.

15. An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose. Without commenting on the merits of the case, the stage of the investigation and the period of incarceration

already undergone would make out a case for bail. Given above the petitioner has no

criminal antecedents.

16. In the facts and circumstances peculiar to this case, the petitioner makes out a case for release on bail.

17. Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and irrespective of the

contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

18. In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734

of 2020, after analysing judicial precedents, this Court observed that any Court granting bail with sureties should give a choice to the accused to either furnish surety

bonds or give a fixed deposit, with a further option to switch over to another.

19. The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Twenty-five thousand (INR 25,000/-), and shall furnish two sureties of a similar amount, to the satisfaction of the Judicial Magistrate having the jurisdiction over the Police Station conducting the investigation, and in case of non-availability, any Ilaqa Magistrate. Before accepting the sureties, the concerned Magistrate must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court, keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.

20. In the alternative, the petitioner may furnish aforesaid personal bond and fixed deposit(s) for Rs. Twenty-five thousand only (INR 25,000/-), made in favour of

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"Chief Judicial Magistrate, District Solan, H.P.,"

a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g., HDFC

Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the linked account.

b) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.

d) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get the online liquidation disabled.

e) The petitioner or his Advocate shall inform at the earliest to the

concerned branch of the bank, that it has been tendered as surety. Such information be sent either by e-mail or by post/courier, about the fixed deposit,

whether made on paper or in any other mode, along with its number as well as FIR number.

f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for substitution of fixed deposit with surety bonds and vice-versa.

h) Subject to the proceedings under S. 446 CrPC, if any, the entire amount

of fixed deposit along with interest credited, if any, shall be endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC, 1973, or until discharged

by substitution as the case may be.

21. The furnishing of the personal bonds shall be deemed acceptance of the

following and all other stipulations, terms, and conditions of this bail order:

a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s), WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall immediately and not later than 30 days from such modification, intimate about

the change of residential address and change of phone numbers, WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

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c) The petitioner shall not influence, browbeat, pressurize, make any

inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.

d) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the investigation at all further stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail.

Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall not be subjected to third-degree, indecent language, inhuman treatment, etc.

e) In addition to standard modes of processing service of summons, the

concerned Court may serve or inform the accused about the issuance of

summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any). [Hon'ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July 10, 2020]:

i. At the first instance, the Court shall issue the summons.

ii. In case the petitioner fails to appear before the Court on the specified

date, in that eventuality, the concerned Court may issue bailable warrants.

iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the petitioner's presence and may send the petitioner to the

Judicial custody for a period for which the concerned Court may deem fit and proper to achieve the purpose.

22. The bail bonds shall continue to remain in force throughout the trial and after that in terms of Section 437-A of the CrPC.

23. Any Advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of this bail order, in vernacular and if not feasible, in Hindi.

24. In case the petitioner finds the bail condition(s) as violating fundamental,

human, or other rights, or causing difficulty due to any situation, then for modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking cognizance or the

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trial Court, as the case may be, and such Court shall also be competent to modify or

delete any condition.

25. This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.

26. Any observation made hereinabove is neither an expression of opinion on the

merits of the case, nor shall the trial Court advert to these comments.

27. In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

28. There would be no need for a certified copy of this order for furnishing bonds. Any Advocate for the petitioner can download this order along with the case status from the official web page of this Court and attest it to be a true copy. In case the

attesting officer or the Court wants to verify the authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

The petition stands allowed in the terms mentioned above.

Copy Dasti.

Anoop Chitkara,

Vacation Judge.

Feb 4, 2021 (sanjeev).