Punjab-Haryana High Court
Nirmala vs State Of Punjab on 22 April, 2024
Neutral Citation No:=2024:PHHC:053774
2024:PHHC:053774
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
108 CRM-M-63269-2023 (O&M)
Date of Decision : April 22, 2024
NIRMALA -PETITIONER
V/S
STATE OF PUNJAB -RESPONDENT
CORAM: HON'BLE MR. JUSTICE KULDEEP TIWARI
Present: Mr. P.K. Bansal, Advocate
for the petitioner.
Mr. Pardeep Bajaj, D.A.G., Punjab.
Mr. V.S. Anand, Advocate
for the complainant.
***
KULDEEP TIWARI, J. (ORAL)
CRM-16941-2024
1. As prayed for, the instant application is allowed. The
application and the interim orders, as sought to be placed on record, are
taken on record respectively as Annexure P-7, and, as Annexure P-8.
CRM-M-63269-2023
2. Through the instant petition, the petitioner craves for
indulgence of this Court for her being enlarged on regular bail, in case FIR
No.107 dated 14.09.2023, under Sections 384, 389 of the IPC (Section 306
of the IPC added subsequently), registered at P.S. Cantt. Ferozepur, District
Ferozepur.
ALLEGATIONS AGAINST THE PETITIONER
3. The genesis of the prosecution case is embodied in the
statement of one Om Parkash (now deceased) (hereinafter referred to as the
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'deceased'), as recorded under Section 164 of the Cr.P.C., before the learned
Magistrate concerned. In this statement, he had alleged that, owing to
harassment and threats of false implication in a rape case being extended by
the present petitioner, he set himself ablaze by pouring petrol over his body.
The gist of the allegations, as narrated in paragraph No.4 of the order dated
02.11.2023, whereby, the learned Additional Sessions Judge, Ferozepur, has
declined to grant regular bail to the petitioner, is extracted hereinafter:-
"This FIR was registered on the basis of statement under Section
164 Cr.P.C. made by Om Parkash (now deceased) before Ms.
Balwinder Kaur Dhaliwal, JMIC, Ferozepur at Anil Baghi Hospital,
Ferozepur, to the effect that Nirmal madam (applicant) had been
residing with him for the last one year. She had been pressurizing
him for purchase of a house in her name, failing which she would
involve him in a rape case. On 19.09.2023, she met him and
proclaimed that she has filed a rape case against him and that he
should pay her Rs.10/15 lacs, otherwise she would proceed further
with the said case. On that day, he received a phone call from police
station that he will be arrested. He contacted an Advocate, who
advised him to go through MLR or FIR. Thereafter, Balvir Singh
suggested him to compromise the matter, failing which a rape case
would be registered against him. In the night, the applicant through
Whatsapp call proclaimed to involve his children in a case. He went
to bazaar, where the applicant met him and again proclaimed to put
him behind the bars and to involve his children in a case. On
14.09.2023, he went to the shop, where the applicant exchanged hot
words with him. He was having petrol with him, which he poured
over his body and set him ablaze."
SUBMISSIONS OF LEARNED COUNSEL FOR THE PETITIONER
4. The learned counsel for the petitioner has submitted that, in
fact, consequent upon demise of his first wife, the deceased had solemnized
his second marriage with the petitioner and they lived together for almost a
year. However, since the grownup sons of the deceased were not happy with
this marriage and they always pressurized the deceased to abandon the
petitioner, therefore, the petitioner left the company of the deceased and
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started residing with her mother.
5. The learned counsel for the petitioner has further submitted the
petitioner has been falsely implicated in the present case, as she had never,
at any point of time, abetted, induced or instigated the deceased. Therefore,
no case under Section 306 of the IPC is made out against the petitioner, as
the ingredients of abetment are completely lacking. The allegations levelled
in the FIR do not carry any truth, rather are flimsy allegations.
6. Lastly, the learned counsel for the petitioner has submitted that,
since the petitioner has been languishing behind the bars since 15.09.2023
and there is no likelihood of the trial concluding any time soon, inasmuch
as, only 7 prosecution witnesses, out of total 23 witnesses, have been
examined so far, therefore, she deserves her being granted the relief of bail,
as her prolonged incarceration would not serve any gainful purpose.
7. Moreover, to substantiate his apprehension qua delay in
conclusion of trial, the learned counsel for the petitioner has drawn attention
of this Court towards Annexure P-7, which is an application made by son of
the deceased, thereby seeking further investigation under Section 173(8) of
the Cr.P.C. By referring to this application, he submits that, in case this
application is allowed, there would definitely be delay in conclusion of trial.
SUBMISSIONS OF THE LEARNED STATE COUNSEL, AND,
LEARNED COUNSEL FOR THE COMPLAINANT
8. Per contra, the learned State counsel, who is assisted by the
learned counsel for the complainant, has vociferously opposed the grant of
bail to the petitioner, on the ground that, since the petitioner had got
prepared her medico-legal examination report, it is sufficient to substantiate
the allegations that she was in the process of making a false rape complaint
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against the deceased. Therefore, apprehending defamation in the society, the
deceased, who was well settled in the mainstream of society, committed
suicide.
9. The learned State counsel has, on instructions imparted to him
by A.S.I. Satpal Singh, verified that, out of total 23 prosecution witnesses,
only 7 witnesses have been examined so far. He also verifies that the
petitioner has been behind the bars since 15.09.2023, and that, she is not
involved in any other criminal case.
ANALYSIS
10. "Bail is the Rule and Jail is an Exception". This basic
principle of criminal jurisprudence was laid down by the Hon'ble
Supreme Court, way back in 1978, in its landmark judgment titled "State
of Rajasthan V. Balchand alias Baliay", 1977 AIR 2447, 1978 SCR (1)
535. This principle finds its roots in one of the most distinguished
fundamental rights, as enshrined in Article 21 of the Constitution of India.
Though the underlying objective behind detention of a person is to ensure
easy availability of an accused for trial, without any inconvenience,
however, in case the presence of an accused can be secured otherwise,
then detention is not compulsory.
11. The right to a speedy trial is one of the rights of a detained
person. However, while deciding application for regular bail, the Courts
shall also take into consideration the fundamental precept of criminal
jurisprudence, which is "the presumption of innocence", besides the
gravity of offence(s) involved.
12. In "Nikesh Tarachand Shah V. Union of India", (2018) 11
SCC 1, the Hon'ble Supreme Court has recorded the following:-
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"14. In Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC
565 at 586-588, the purpose of granting bail is set out with great
felicity as follows:-
"27. It is not necessary to refer to decisions which deal
with the right to ordinary bail because that right does not
furnish an exact parallel to the right to anticipatory bail. It
is, however, interesting that as long back as in 1924 it was
held by the High Court of Calcutta in Nagendra v. King-
Emperor [AIR 1924 Cal 476, 479, 480 : 25 Cri LJ 732]
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. In two other cases which,
significantly, are the 'Meerut Conspiracy cases'
observations are to be found regarding the right to bail
which deserve a special mention. In K.N. Joglekar v.
Emperor [AIR 1931 All 504 : 33 Cri LJ 94] it was
observed, while dealing with Section 498 which
corresponds to the present Section 439 of the Code, that it
conferred upon the Sessions Judge or the High Court wide
powers to grant bail which were not handicapped by the
restrictions in the preceding Section 497 which
corresponds to the present Section 437. It was observed by
the court that there was no hard and fast rule and no
inflexible principle governing the exercise of the discretion
conferred by Section 498 and that the only principle which
was established was that the discretion should be exercised
judiciously. In Emperor v. Hutchinson [AIR 1931 All 356,
358 : 32 Cri LJ 1271] it was said that it was very unwise to
make an attempt to lay down any particular rules which
will bind the High Court, having regard to the fact that the
legislature itself left the discretion of the court unfettered.
According to the High Court, the variety of cases that may
arise from time to time cannot be safely classified and it is
dangerous to make an attempt to classify the cases and to
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say that in particular classes a bail may be granted but not
in other classes. It was observed that the principle to be
deduced from the various sections in the Criminal
Procedure Code was that grant of bail is the rule and
refusal is the exception. An accused person who enjoys
freedom is in a much better position to look after his case
and to properly defend himself than if he were in custody.
As a presumably innocent person he is therefore entitled to
freedom and every opportunity to look after his own case.
A presumably innocent person must have his freedom to
enable him to establish his innocence.
28. Coming nearer home, it was observed by Krishna Iyer, J., in
Gudikanti Narasimhulu v. Public Prosecutor [(1978) 1 SCC 240 :
1978 SCC (Cri) 115] that: (SCC p. 242, para 1)
"... the issue of bail is one of liberty, justice, public safety
and burden of the public treasury, all of which insist that a
developed jurisprudence of bail is integral to a socially
sensitized judicial process. . . . After all, personal liberty of
an accused or convict is fundamental, suffering lawful
eclipse only in terms of procedure established by law. The
last four words of Article 21 are the life of that human
right."
29. In Gurcharan Singh v. State (Delhi Administration) [(1978) 1
SCC 118 : 1978 SCC (Cri) 41] it was observed by Goswami, J.,
who spoke for the court, that: (SCC p. 129, para 29)
"There cannot be an inexorable formula in the matter of
granting bail. The facts and circumstances of each case
will govern the exercise of judicial discretion in granting
or cancelling bail."
30. In AMERICAN JURISPRUDENCE (2d, Volume 8, p. 806,
para 39), it is stated:
"Where the granting of bail lies within the discretion of the
court, the granting or denial is regulated, to a large extent,
by the facts and circumstances of each particular case.
Since the object of the detention or imprisonment of the
accused is to secure his appearance and submission to the
jurisdiction and the judgment of the court, the primary
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inquiry is whether a recognizance or bond would effect
that end."
It is thus clear that the question whether to grant bail or not
depends for its answer upon a variety of circumstances, the
cumulative effect of which must enter into the judicial verdict. Any
one single circumstance cannot be treated as of universal validity
or as necessarily justifying the grant or refusal of bail."
13. Also, in Siddharam Satlingappa Mhetre v. State of
Maharashtra, Criminal Appeal No.2271 of 2010, the Hon'ble Supreme
Court has insisted upon striking a perfect balance of sanctity of an
individual's liberty as well as the interest of the society, in grant or
refusing bail. The relevant extract of the judgment (supra) is reproduced
hereinafter:-
3. The society has a vital interest in grant or refusal of bail
because every criminal offence is the offence against the State.
The order granting or refusing bail must reflect perfect balance
between the conflicting interests, namely, sanctity of individual
liberty and the interest of the society. The law of bails dovetails
two conflicting interests namely, on the one hand, the
requirements of shielding the society from the hazards of those
committing crimes and potentiality of repeating the same crime
while on bail and on the other hand absolute adherence of the
fundamental principle of criminal jurisprudence regarding
presumption of innocence of an accused until he is found guilty
and the sanctity of individual liberty.
14. Be that as it may, this Court has examined the instant petition
on the touchstone of the hereinabove extracted settled legal principle(s) of
law and is of the considered opinion that the instant petition is amenable
for being allowed.
15. The reason for forming the above inference emanates from the
factum that:- (i) uncontestedly, the petitioner has suffered incarceration of
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approx. 7 months and has clean antecedents; (ii) there is no likelihood of the
trial concluding anytime soon, as only 7 prosecution witnesses, out of total
23 witnesses, have been examined so far, therefore, keeping the petitioner
behinds the bars would serve no gainful purpose; (iii) the issue "whether the
act of the petitioner, as alleged in the FIR, tantamounts to abetment or not,
and, whether thereby the rigor of Section 306 of the IPC is invited or not" is
a moot question, which is to be adjudicated by the learned trial Court
concerned, after appreciation of the evidence, as to be adduced by both the
parties.
FINAL ORDER
16. Considering the hereinabove made discussion, this Court deems
it appropriate to grant the concession of regular bail to the petitioners.
Therefore, without commenting upon the merits and circumstances of the
present case, the present petition is allowed. The petitioner is ordered to be
released on bail on furnishing of bail bond and surety bond to the
satisfaction of concerned Chief Judicial Magistrate/trial Court/Duty
Magistrate.
17. Anything observed here-in-above shall have no effect on the
merits of the trial and is meant for deciding the present petitions only.
(KULDEEP TIWARI)
April 22, 2024 JUDGE
devinder
Whether speaking/reasoned : Yes/No
Whether Reportable : Yes/No
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