Punjab-Haryana High Court
Deep Kaur @ Kulvir Kaur vs State Of Punjab on 21 December, 2021
CRM-M-41771-2020 -1-
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
322 CRM-M-41771-2020
Date of decision : 21.12.2021
Deep Kaur @ Kulvir Kaur
... Petitioner
Versus
State of Punjab
.. Respondent
CORAM :HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL
Present:- Mr. Simranjit Singh, Advocate and
Mr. Arnav Sood, Advocate for the petitioner.
Mrs. Amarjit Kaur Khurana, DAG, Punjab.
***
Anupinder Singh Grewal, J. (Oral)
The petitioner is seeking regular bail in FIR No.46 dated
31.05.2018 under Sections 307, 438, 427, 148, 149 IPC (Sections 121, 121-A,
122, 124-A, 115, 120-B IPC, Sections 11, 12, 13, 17, 18 of the Unlawful
Activities (Prevention) Act, 1967 (for short, 'the UAPA'), Sections 25/54/59 of
the Arms Act and Section 66-F of the Information Technology Act, 2000 added
later on), registered at Police Station Rangar Nangal, District Batala.
Learned counsel for the petitioner contends that the petitioner is
not named in the FIR wherein it is alleged that a wine shop had been set on fire.
The petitioner has been arraigned as an accused on the statement of co-accused
Dharminder Singh @ Fauji. In the course of investigation and in the statement
of co-accused Dharminder Singh @ Fauji, it transpires that the petitioner on
her Facebook account had posted about 'Sikhs for Justice 2020 Referendum'.
Besides this post on social media, there is no allegation that the petitioner had
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taken part in any unlawful activity. He also contends that 'Sikhs for Justice
Organisation' had been banned by the Government of India in July, 2019 and
the petitioner had posted on her facebook account on 31.05.2018 when the
organisation was not yet banned. He further contends that even assuming the
petitioner was a member of a banned organization she had not done any overt
act of violence or anything to incite violence that would be covered under
unlawful activities. In support of his contentions, he has relied upon the
judgment of the Supreme Court in the case of Sri Indra Das versus State of
Assam, 2011(3) SCC 380. The petitioner is a lady with three minor children,
one of whom was born while she was in custody in the instant case. The infant
is now one year and nine months old and is lodged with the petitioner in jail.
Two other minor children are being looked after by her husband and other
family members. Prior to the involvement of the petitioner in the instant FIR,
she was not involved in any other case. She is in custody for over two years
and three months since her arrest on 14.08.2019. The trial in the instant case
has come to a standstill as a Coordinate Bench of this Court in CRR No.1798
of 2019 preferred by co-accused Dharminder Singh @ Fauji against framing of
charges, has stayed further proceedings and there is no likelihood that the trial
will be concluded soon. Co-accused Harnam Singh and Nirmal Singh have
been granted bail by the Additional Sessions Judge, Gurdaspur on 20.07.2018.
He also contends that the petitioner would be entitled to the concession of
regular bail in view of Article 21 of the Constitution of India which guarantees
right to speedy trial. He has cited the judgement of the Supreme Court in the
case of Union of India versus K.A. Najeeb, 2021(3) SCC 713 wherein the
Supreme Court had directed the release of the petitioner merely on account of
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long custody even though the allegations were serious.
Learned State counsel, upon instructions from DSP Jitender Pal
Singh, contends that the petitioner had actively indulged in unlawful activities
and she was a part of a group which was carrying out activities related to
referendum-2020. She also contends that the petitioner had circulated the
video recording of the incident after the wine shop had been set on fire. The
petitioner was maintaining three facebook IDs in the name of various persons.
The recovery of six mobile phones and five pen drives have been effected
from the petitioner. There is also an audio recording with regard to the
petitioner being in conversation with co-accused wherein she was stating that
they should get a newspaper registered and carry out assassinations. The
petitioner was also demanding money for this and therefore, she is not entitled
to the concession of regular bail. In support of her submissions, she has relied
upon the judgement of the Supreme Court in the case of National
Investigation Agency versus Zahoor Ahmad Shah Watali, 2019 AIR
(SC)1734 and contends that only where a prima facie case under the UAPA is
not made out, the Court can grant regular bail.
Heard.
The allegations against the petitioner are that she had posted about
'referendum-2020' on her facebook account and there is stated to be an audio
recording of the petitioner being in conversation with co-accused. Its
authenticity and evidentiary value would be determined at the trial. There is no
reference to any act of violence (overt) which was actually committed by any of
the accused in the instant case or that any individual had been harmed in the
instant case. The petitioner is a lady with three minor children, one of whom is
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about one year and nine months old and is lodged with her in jail. The
petitioner is in custody for over two years and three months. Challan has been
filed but there is no likelihood of the trial being concluded soon.
In the case of Union of India versus K.A. Najeeb (supra), the
Supreme Court has held that long custody would be an essential factor while
granting bail under the UAPA. Article 21 of the Constitution of India provides
right to speedy trial and long period of incarceration would be a good ground to
grant bail to an under-trial for an offence punishable under the UAPA. It has
also been held that the embargo under Section 43-D of the UAPA would not
negate the powers of the Court to give effect to Article 21 of the Constitution
of India. The relevant extract of the judgement is reproduced hereunder:-
"It is thus clear to us that the presence of statutory restrictions
like Section 43D (5) of UAPA per se does not oust the ability of
Constitutional Courts to grant bail on grounds of violation of Part
III of the Constitution. 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 safeguard against the
possibility of provisions like Section 43D (5) of 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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Instead, Section 43-D (5) of UAPA merely provides another
possible ground for the competent Court to refuse bail, in addition
to the well-settled considerations like gravity of the offence,
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possibility of tampering with evidence, influencing the witnesses
or chance of the accused evading the trial by absconsion etc."
In view of the above, the petition is allowed and the petitioner is
ordered to be released on regular bail on her furnishing requisite bonds to the
satisfaction of the trial Court/Duty Magistrate concerned.
At the time of release of the petitioner, the SHO, Women Police
Station, Jalandhar shall be informed. The petitioner shall furnish her mobile
number to the SHO concerned and shall also keep the location of her phone on
till the conclusion of the trial. The petitioner shall also not indulge in any
illegal activity and shall appear before the SHO Women Police Station,
Jalandhar on the first Monday of every month till the conclusion of the trial.
However, it is clarified that the observations made hereinabove
would not have any bearing on the merits of the case.
(ANUPINDER SINGH GREWAL)
JUDGE
December 21, 2021
sonia gugnani
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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