Himachal Pradesh High Court
Date Of Decision: 30.07.2024 vs State Of Himachal Pradesh on 30 July, 2024
Author: Sandeep Sharma
Bench: Sandeep Sharma
2024:HHC:6107
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP(M) No.1408 of 2024
Date of Decision: 30.07.2024
.
________________________________________________________________
Bimla Devi ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
________________________________________________________________
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 Yes.
________________________________________________________________
For the petitioner: Mr. Arjun Lal, Advocate, vice Mr. Maan
Singh, Advocate.
For the respondent: Mr. Rajan Kahol, Mr. Vishal Panwar
and Mr. B.C. Verma, Additional
r Advocates General with Mr. Ravi
Chauhan, Deputy Advocate General.
________________________________________________________________
Sandeep Sharma, J. (Oral)
Bail petitioner, namely Bimla Devi, who is behind the
bars since 05.03.2023, has approached this Court in the instant
proceedings filed under Section 439 Cr.P.C., for grant of regular
bail in case FIR No.31 dated 05.03.2023, under Section 20 of
NDPS Act, registered at Police Station Bhunter, District Kullu,
Himachal Pradesh.
2. Respondent/State has filed status report, perusal
whereof reveals that on 05.03.2023, police after having received
secret information that one lady namely Bimla Devi indulges in
illegal trade of narcotics and she may sell huge quantity of
contraband to some tourist near SBI parking, Bhunter,
constituted a Police team, which after having associated
Whether reporters of the local papers may be allowed to see the judgment?
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independent witnesses apprehended the bail petitioner near
parking of SBI Bhunter. Since after having seen the Police,
.
petitioner-Bimla Devi got perplexed and attempted to throw one
bag, police deemed it necessary to cause her personal search as
well as bag, allegedly thrown by her. Allegedly, police recovered 2
kilogram and 508 grams of charas. Since, no plausible
explanation came to be rendered on record qua possession of
aforesaid commercial
quantity of contraband, police
completion of necessary codal formalities, registered afore FIR, as
detailed hereinabove, and since then, bail-petitioner is behind
after
bars.
3. Since investigation in the case at hand is complete,
petitioner, who is behind bars for more than one year, has
approached this Court in the instant proceedings for grant of
regular bail on the ground of inordinate delay in conclusion of
trial. It has been further argued by learned counsel for the bail
petitioner that petitioner is behind the bars for more than one
year, but till date, only 5 prosecution witnesses, out of 16 have
been examined and such, considerable time is likely to be
consumed in the conclusion of the trial.
4. Mr. Vishal Panwar, learned Additional Advocate
General, while fairly admitting the factum with regard to filing of
the Challan in the competent Court of law, contends that though
nothing remains to be recovered from the bail petitioner but
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keeping in view the gravity of the offence alleged to have been
committed by her, she does not deserve any leniency and prayer
.
made on her behalf for grant of bail deserves outright rejection.
While referring to status report, Mr. Panwar states that
commercial quantity of contraband was recovered from the
conscious possession of bail-petitioner and as such, provision of
Section 37 of the NDPS Act are attracted, which bars Court from
granting bail in the cases involving commercial quantity. He
further states that prayer made on behalf of the petitioner to
enlarge her on bail, on account of inordinate delay during trial
can be rejected taking note of the fact that out of 16 prosecution
witnesses, 5 already stand examined and for evidence of
remaining prosecution witnesses, learned trial Court has already
fixed the matter for 02.08.2024. Mr. Panwar further states that
though there is nothing on record to suggest that in past,
petitioner had been indulging in the trade of narcotics, but
having taken note of quantity of contraband came to be recovered
from her conscious possession, on the date of alleged incident, it
can be safely presumed that she is a drug peddler and in the
event of her being enlarged on bail, she may not only flee from
justice, but may again indulge in these activities.
5. Having heard learned counsel for the parties and
perused the material available on record, this Court finds that
commercial quantity of contraband was recovered from the bag,
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allegedly thrown by the petitioner, after seeing Police in the
presence of independent witnesses and as such, this Court is not
.
persuaded to agree with Mr. Arjun Lal, learned counsel for the
petitioner that bail-petitioner has been falsely implicated in the
present case.
6. No doubt, rigours of Section 37 of the Act are
attracted, but bare perusal of provisions contained under Section
37 nowhere suggests that no bail can be granted in cases
involving commercial quantity, rather in such cases, Court after
affording due opportunity of hearing to public prosecutor can
proceed to grant bail, if it is satisfied that the bail petitioner has
been falsely implicated and in the event of bail he/she will not
indulge in such activities again. In the case at hand, at present,
there is nothing to suggest that bail-petitioner has been falsely
implicated, but same time, there is nothing on record to suggest
that in the event of petitioner being enlarged on bail, she may
again indulge in these activities, especially when no case in past
has been registered against her.
7. Leaving everything aside, this Court cannot lose
sight of the fact that bail-petitioner is behind bars for more than
one year and till today, prosecution has been able to examine
only five prosecution witnesses, out of 16 prosecution witnesses.
Though, status report reveals that for recording the statement of
remaining witnesses, Court below has fixed the matter for
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02.08.2024, but since, it took more than one year for prosecution
to examine five witnesses, this Court can well presume that
.
considerable time is likely to be consumed in conclusion of trial
and in case, petitioner is left to incarcerate for indefinite period
during trial, that would amount to pretrial conviction, which is
otherwise not permissible in law.
8. By now, it is well settled that speedy trial is legal
right of the accused and one cannot be made to suffer indefinitely
for delay in trial and as such, this Court sees no reason to keep
the bail petitioner behind the bars for indefinite period during
trial. Delay in trial has been held to be in violation of the right
guaranteed under Article 21 of Constitution of India. Reliance is
placed on judgment passed by the Hon'ble Apex Court in case
titled Umarmia Alias Mamumia v. State of Gujarat, (2017) 2
SCC 731, relevant para whereof has been reproduced herein
below:-
"11. This Court has consistently recognised the right of the
accused for a speedy trial. Delay in criminal trial has been held
to be in violation of the right guaranteed to an accused under
Article 21 of the Constitution of India. (See: Supreme Court
Legal Aid Committee v. Union of India, (1994) 6 SCC 731;
Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616)
Accused, even in cases under TADA, have been released on bail
on the ground that they have been in jail for a long period of
time and there was no likelihood of the completion of the trial at
the earliest. (See: Paramjit Singh v. State (NCT of Delhi), (1999)
9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC
569)."
9. Hon'ble Apex Court having taken note of inordinate
delay in conclusion of trial in similar facts ordered for
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enlargement of accused on bail in Nitish Adhikary @ Bapan v.
The State of West Bengal, Special Leave to Appeal (Crl.) No.
.
5769 of 2022 decided on 1.8.2022 and in Abdul Majeed Lone v.
Union Territory of Jammu and Kashmir, Special Leave to
Appeal (Crl) No. 3961 of 2022, decided on 1.8.2022, who were
also framed under Narcotic Drugs and Psychotropic Substances
Act and were behind the bars for approximately two years and
10.
r to
there was no likelihood of conclusion of trial in near future,
subject to certain conditions.
Placing reliance upon aforesaid judgments, a Co-
ordinate Bench of this Court in CrMP(M) No. 1328 of 2022 titled
Roop Singh v. State of Himachal Pradesh, decided on
6.9.2022, also ordered for enlargement of an accused, who was
allegedly apprehended carrying commercial quantity of Tramadol,
on the ground of delay in conclusion of trial.
11. Apart from above judgment, Co-ordinate Bench of
this Court while granting bail vide order dated 22.3.2021 in
CrMP(M) No. 35 of 2021 titled Ajay Singh v. State of Himachal
Pradesh, also placed reliance upon a judgment delivered by a
three-Judge Bench in Cr. Appeal No. 668 of 2020 titled Amrit
Singh Moni v. State of Himachal Pradesh, decided on
12.10.2020, wherein petitioner was allegedly found in
possession of 3285 grams of charas from a vehicle, wherein four
other persons were sitting.
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12. Learned Counsel appearing for the petitioner, to
substantiate his plea for enlarging the petitioner on bail, has
.
referred order dated 12.10.20220 passed by a three judges Bench
of the Supreme Court, in Criminal Appeal No. 668 of 2020, titled
Amrit Singh Moni v. State of Himachal Pradesh, whereby
petitioner therein, facing trial for recovery of 3.285 kilograms
charas from a vehicle, alongwith four other persons, was
enlarged on bail, for having been in detention for 2 years and 7
months, as till then out of 14 witnesses, 7 witnesses were yet to
be examined and last witness was examined in February, 2020
and, thereafter, there as no further progress in the trial.
13. Learned Additional Advocate General, referring to
judgment of a three Judges Bench of Supreme Court, passed on
19.7.2022 in Narcotics Control Bureau v. Mohit Aggarwal
contends that period of detention cannot be a ground for
enlarging the petitioner on bail.
14. The learned Counsel appearing for the petitioner
submits that in Mohit Aggarwal, huge commercial quantity of 20
kilograms of Tramadol, against minimum commercial quantity of
250 grams, was recovered, whereas, in the present case, the
recovered quantity is little more than the commercial quantity.
15. In similar circumstances, in CrMP(M) No. 1255 of
2022, titled Puran Chand v. State of Himachal Pradesh,
decided on 28.7.2022, another Co-ordinate Bench of this Court,
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having taken note of inordinate delay in conclusion of trial,
ordered enlargement on bail of the person, who was apprehended
.
with 1.996 kg of charas.
16. Recently, Hon'ble Apex Court in Javed Gulam Nabi
Shaikh Vs. State of Maharashtra and Another, Criminal
Appeal No.2787 of 2024, decided on 03.07.2024, adversely
commented upon the approach of trial Court as well as High
Court while considering the prayer for grant of bail. In the
aforesaid judgment, Hon'ble Supreme Court having taken note of
the fact that appellant in that case was in jail for last four years
and Court till that date was not able to frame charges, proceeded
to enlarge accused on bail in a case registered under the
provisions of Unlawful Activities (Prevention) Act, 1967. In no
uncertain terms, Hon'ble Apex Court in aforesaid judgment held
that, however serious a crime may be, an accused has right to
speedy trial, as enshrined in Article 21 of the Constitution of
India. Relevant Paras of aforesaid judgment are reproduced
hereinbelow, which reads as under:
"7. Having heard the learned counsel appearing for the
parties and having gone through the materials on record, we
are inclined to exercise our discretion in favour of the appellant
herein keeping in mind the following aspects:
(i) The appellant is in jail as an under-trial prisoner past four
years;
(ii) Till this date, the trial court has not been able to even
proceed to frame charge; and
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(iii) As pointed out by the counsel appearing for the State as
well as NIA, the prosecution intends to examine not less than
eighty witnesses.
.
8. Having regard to the aforesaid, we wonder by what
period of time, the trial will ultimately conclude. Howsoever
serious a crime may be, an accused has a right to speedy trial
as enshrined under the Constitution of India.
9. Over a period of time, the trial courts and the High
Courts have forgotten a very well settled principle of law that
bail is not to be withheld as a punishment.
10. In the aforesaid context, we may remind the trial courts
and the High Courts of what came to be observed by this Court
in Gudikanti Narasimhulu & Ors. v. Public Prosecutor,
High Court reported in (1978) 1 SCC 240. We quote:
r "What is often forgotten, and therefore warrants
reminder, is the object to keep a person in judicial
custody pending trial or disposal of an appeal. Lord
Russel, C.J., said [R v. Rose, (1898) 18 Cox] :
"I observe that in this case bail was refused for the
prisoner. It cannot be too strongly impressed on the,
magistracy of the country that bail is not to be
withheld as a punishment, but that the
requirements as to bail are merely to secure the
attendance of the prisoner at trial."
11. The same principle has been reiterated by this Court in
Gurbaksh Singh Sibba v. State of Punjab reported in (1980)
2 SCC 565 that the object of bail is to secure the attendance of
the accused at the trial, that 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 and that it is indisputable that bail is not to be
withheld as a punishment.
12. Long back, in Hussainara Khatoon v. Home Secy.,
State of Bihar reported in (1980) 1 SCC 81, this court had
declared that the right to speedy trial of offenders facing
criminal charges is "implicit in the broad sweep and content of
Article 21 as interpreted by this Court". Remarking that a valid
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procedure under Article 21 is one which contains a procedure
that is "reasonable, fair and just" it was held that:
"Now obviously procedure prescribed by law for
.
depriving a person of liberty cannot be "reasonable,
fair or just"unless that procedure ensures a speedy
trial for determination of the guilt of such person.
No procedure which does not ensure a reasonably
quick trial can be regarded as "reasonable, fair or
just" and it would fall foul of Article 21. There can,
therefore, be no doubt that speedy trial, and by
speedy trial we mean reasonably expeditious trial, is
an integral and essential part of the fundamental
right to life and liberty enshrined in Article21. The
question which would, however, arise is as to what
r would be the consequence if a person accused of an
offence is denied speedy trial and is sought to be
deprived of his liberty by imprisonment as a result
of along delayed trial in violation of his fundamental
right under Article 21."
13. The aforesaid observations have resonated, time and
again, in several judgments, such as Kadra Pahadiya & Ors.
v. State of Bihar reported in (1981) 3 SCC 671 and Abdul
Rehman Antulay v. R.S. Nayak reported in (1992) 1 SCC 225.
In the latter the court re-emphasized the right to speedy trial,
and further held that an accused, facing prolonged trial, has no
option:
"The State or complainant prosecutes him. It is, thus,
the obligation of the State or the complainant, as the
case maybe, to proceed with the case with reasonable
promptitude. Particularly, in this country, where the
large majority of accused come from poorer and weaker
sections of the society, not versed in the ways of law,
where they do not often get competent legal advice, the
application of the said rule is wholly inadvisable. Of
course, in a given case, if an accused demands speedy
trial and yet he is not given one,may be a relevant
factor in his favour. But we cannot disentitle an
accused from complaining of infringement of his right
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to speedy trial on the ground that he did not ask for or
insist upon a speedy trial."
14. In Mohd Muslim @ Hussain v. State (NCT of Delhi)
.
reported in 2023INSC 311, this Court observed as under:
"21. Before parting, it would be important to reflect
that laws which impose stringent conditions for grant
of bail,may be necessary in public interest; yet, if trials
are not concluded in time, the injustice wrecked on the
individual is immeasurable. Jails are overcrowded and
their living conditions, more often than not, appalling.
According to the Union Home Ministry's response to
Parliament, the National Crime Records Bureau had
recorded that as on 31stDecember 2021, over 5,54,034
prisoners were lodged in jails against total capacity of
r 4,25,069 lakhs in the country. Of these 122,852 were
convicts; the rest 4,27,165 were undertrials.
22. The danger of unjust imprisonment, is that inmates
are at risk of "prisonisation" a term described by the
KeralaHigh Court in A Convict Prisoner v. State
reported in 1993Cri LJ 3242, as "a radical
transformation" whereby the prisoner:
"loses his identity. He is known by a number. He
loses personal possessions. He has no personal
relationships. Psychological problems result from
loss of freedom,status, possessions, dignity any
autonomy of personal life. The inmate culture of
prison turns out to be dreadful. The prisoner
becomes hostile by ordinary standards. Self-
perception changes."
23. There is a further danger of the prisoner turning to
crime, "as crime not only turns admirable, but the
more professional the crime, more honour is paid to the
criminal"(also see Donald Clemmer's 'The Prison
Community' published in 1940). Incarceration has
further deleterious effects - where the accused belongs
to the weakest economic strata: immediate loss of
livelihood, and in several cases, scattering of families
as well as loss of family bonds and alienation from
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society. The courts therefore,have to be sensitive to
these aspects (because in the event of an acquittal, the
loss to the accused is irreparable), and ensure that
.
trials - especially in cases, where special laws enact
stringent provisions, are taken up and concluded
speedily."
15. The requirement of law as being envisaged under
Section 19 of the National Investigation Agency Act, 2008
(hereinafter being referred to as "the 2008 Act") mandates that
the trial under the Act of any offence by a Special Court shall
be held on day-to-day basis on all working days and have
precedence over the trial of any other case and Special Courts
are to be designated for such an offence by the Central
Government in consultation with the Chief Justice of the High
Court as contemplated under Section 11 of the 2008.
16. A three-Judge Bench of this Court in Union of India v.
K.A. Najeeb reported in (2021) 3 SCC 713] had an occasion to
consider the long incarceration and at the same time the effect
of Section 43-D(5) of the UAP Act and observed as under : (SCC
p. 722, para 17)
"17. It is thus clear to us that the presence of statutory
restrictions like Section 43-D(5) of the UAPA per se
does not oust the ability of the constitutional courts to
grant bail on grounds of violation of Part III of the
Constitution. Indeed,both the restrictions under a
statute as well as the powers exercisable under
constitutional jurisdiction can be well harmonised.
Whereas at commencement of proceedings,the courts
are expected to appreciate the legislative policy against
grant of bail but the rigours of such provisions will melt
down where there is no likelihood of trial being
completed within a reasonable time and the period of
incarceration already undergone has exceeded a
substantial part of the prescribed sentence. Such an
approach would safe-guard against the possibility of
provisions like Section 43-D(5) of the UAPA being used
as the sole metric for denial of bail or for wholesale
breach of constitutional right to speedy trial."
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17. In the recent decision, Satender Kumar Antil v.
Central Bureau of Investigation reported in (2022) 10 SCC
51, prolonged incarceration and inordinate delay engaged the
.
attention of the court, which considered the correct approach
towards bail, with respect to several enactments, including
Section 37 NDPS Act. The court expressed the opinion that
Section 436A (which requires inter alia the accused to be
enlarged on bail if the trial is not concluded within specified
periods) of the Criminal Procedure Code, 1973would apply:
"We do not wish to deal with individual enactments as
each special Act has got an objective behind it, followed
by the rigour imposed. The general principle governing
delay would apply to these categories also. To make it
clear, the provision contained in Section 436-A of the
r Code would apply to the Special Acts also in the
absence of any specific provision. For example, the
rigour as provided under Section 37 of the NDPS Act
would not come in the way in such a case as we are
dealing with the liberty of a person. We do feel that
more the rigour, the quicker the adjudication ought to
be. After all, in these types of cases number of
witnesses would be very less and there may not be any
justification for prolonging the trial. Perhaps there is a
need to comply with the directions of this Court to
expedite the process and also a stricter compliance of
Section 309 of the Code."
18. Criminals are not born out but made. The human
potential in everyone is good and so, never write off any
criminal as beyond redemption. This humanist fundamental is
often missed when dealing with delinquents,juvenile and adult.
Indeed, every saint has a past and every sinner a future. When
a crime is committed, a variety of factors is responsible for
making the offender commit the crime. Those factors may be
social and economic, maybe, the result of value erosion or
parental neglect; may be, because of the stress of
circumstances, or the manifestation of temptations in a milieu
of affluence contrasted with indigence or other privations.
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19. If the State or any prosecuting agency including the
court concerned has no wherewithal to provide or protect the
fundamental right of an accused to have a speedy trial as
.
enshrined under Article 21 of the Constitution then the State or
any other prosecuting agency should not oppose the plea for
bail on the ground that the crime committed is serious. Article
21 of the Constitution applies irrespective of the nature of the
crime."
17. Hon'ble Apex Court as well as this Court in catena of
cases have repeatedly held that one is deemed to be innocent till
the time guilt, if any, of his/her is not proved in accordance with
law. In the case at hand also, guilt, if any, of the accused is yet
to be proved in accordance with law, by leading cogent and
convincing material on record and as such, her incarceration for
indefinite period is clear cut violation of Fundamental Right
granted under Article 21 of the Constitution of India.
Apprehension expressed by the learned Additional Advocate
General that in the event of petitioner's being enlarged on bail,
she may flee from justice, can be best met by putting the bail
petitioner to stringent conditions as has been fairly stated by the
learned counsel for the petitioner.
18. 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
cannot be curtailed for indefinite period, especially when his/her
guilt is yet to be proved. It has been further held by the Hon'ble
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Apex Court in the aforesaid judgment that a person is believed to
be innocent until found guilty.
.
19. Hon'ble Apex Court in Sanjay Chandra versus
Central Bureau of Investigation (2012)1 Supreme Court
Cases 49 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.
20. In Manoranjana Sinh alias Gupta versus CBI,
(2017) 5 SCC 218, Hon'ble Apex Court has held that the 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.
21. The Apex Court in Prasanta Kumar Sarkar versus
Ashis Chatterjee and another (2010) 14 SCC 496, has laid
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down various principles to be kept in mind, while deciding
petition for bail viz. prima facie case, nature and gravity of
.
accusation, punishment involved, apprehension of repetition of
offence and witnesses being influenced.
22. There is another aspect to the matter, in the case at
hand, as per status report, petitioner was arrested on 05.03.2023
at 8:30 p.m., meaning thereby, arrest of the petitioner was
admittedly after the sunset. At this stage, it would be apt to take
note of Sections 46(4) and 60-A of Cr.P.C., which reads as under:
"Section 46(4) in The Code of Criminal Procedure, 1973
-(4)[Save in exceptional circumstances, no woman shall be
arrested after sunset and before sunrise, and where such
exceptional circumstances exist, the woman police officer shall,
by making a written report, obtain the prior permission of the
Judicial Magistrate of the first class within whose local
jurisdiction the offence is committed or the arrest is to be
made.] [Inserted by Act 25 of 2005, Section 6 (w.e.f. 23.6.2006).]
*** *** ***
60A. [ Arrest to be made strictly according to the Code
[Inserted by the Code of Criminal Procedure (Amendment)
Act, 2008 (5 of 2009), Section 10.]
-No arrest shall be made except in accordance with the
provisions of this Code or any other law for the time being in
force providing for arrest.]"
23. Section 46(4) of Cr.P.C. clearly provides that save in
exceptional circumstances, no woman shall be arrested after
sunset or before sunrise and where such exceptional
circumstances exist, the Woman Police Officer shall, by making a
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written report, obtain the prior permission of the Judicial
Magistrate of the First Class. Interestingly, in the case at hand,
.
no exceptional circumstances ever came to be recorded nor
permission, if any, was ever taken from the Judicial Magistrate,
under whose local jurisdiction, the offence was committed.
Section 60-A of Cr.P.C. clearly provides that no arrest shall be
made except in accordance with the provisions of Cr.P.C. or any
other law for the time being in force providing for arrest. Meaning
thereby, in the present case, arrest of the petitioner after sunset
is otherwise wholly impermissible.
24. In similar facts and circumstances of the case, High
Court of Bombay in case titled as Kavita Manikikar of Mumbai
Vs. Central Bureau of Investigation, 2018 SCC OnLine Bom
1095, held as under:
"23. The observation of the learned Special Judge, as regards
presence of the Lady Inspector at the time of arrest, however,
did not find any mention in the Arrest-cum-Personal Search
Memo dated 20.02.2018. The learned Special Judge has
concluded that since the petitioner was present in the office of
the CBI along with husband, there was no breach of Section
46(4) of the Code. The learned Judge has failed to take into
consideration the mandate of Section 46(4) of the Code and has
erred in making the observation that there is no violation of
provision of Section 46(4). Section 60-A of the Code makes it
imperative that no arrest shall be made except in accordance
with the provisions of this Code. Resultantly, any arrest which
is made in violation of provisions contained in the Code shall be
liable to be termed as not in accordance with the Code and
thus, illegal. Where a statute mandates that no woman shall be
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arrested after sunset and before sunrise and the arrest of a
person when she is a woman has to be made by police officer,
who is a female, the provisions of the statute cannot be simply
.
ignored.
24. Perusal of the affidavit-in-reply filed by the CBI clearly
reveals that the petitioner was present in the office of CBI from
15 : 15 hrs. However, from the affidavit as well as Arrest-cum-
Personal Search Memo, it is clear that the arrest came to be
effected at 20 : 00 hrs. Section 46(4) contemplates that while
making arrest, the police officer or the person making the same
shall actually touch or confine the body of the person to be
arrested and in case of a female, it shall be necessarily done by
a female police officer since there is apprehension that the male
police officer might touch the person of a woman while making
arrest. The contention of the learned counsel for the
respondent-CBI that she was already in custody and being
confined to the jurisdiction of the CBI, formal arrest being
effected at 20 : 00 hrs. would not vitiate the said arrest; do not
appear to be correct approach in the light of settled legal
position.
25. Perusal of Section 46(4) would make it amply clear that
it mandates that no woman shall be arrested after sunset and
before sunrise, save in exceptional circumstances when prior
permission of Judicial Magistrate First Class in whose legal
jurisdiction the offence is committed or arrest is to be made.
Thus, it is clear that no woman shall be arrested beyond the
prescribed schedule of time and where in exceptional
circumstances, by Lady Police Officer by making a written
report and obtaining permission from the Judicial Magistrate
First Class. Mandate of Sub-section (4) of Section 46 is two
fold. The said Section sets out that no woman be arrested after
sunset and before sunrise and in the exceptional
circumstances, she may be so arrested on a Lady Police Officer
making a report and obtaining permission of the Judicial
Magistrate First Class for effecting such an arrest."
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25. In view of the aforesaid discussion as well as law laid
down by the Hon'ble Apex Court, 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.2,00,000/- with two local sureties in the like amount to the
satisfaction of concerned Chief Judicial Magistrate/trial Court,
with following conditions:
r to
(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
(d) She shall not leave the territory of India without the
prior permission of the Court.
26. It is clarified that if the petitioner misuses the liberty
or violates any of the conditions imposed upon her, the
investigating agency shall be free to move this Court for
cancellation of the bail.
27. 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 application alone. The
petition stands accordingly disposed of.
2024:HHC:6107
28. The petitioner is permitted to produce copy of the
order downloaded from the High Court Website and the trial
.
court shall not insist for certified copy of the order, however, it
may verify the order from the High Court website or otherwise.
(Sandeep Sharma)
Judge
30th July, 2024
(Rajeev Raturi)
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