Sandeep Sharma DECISION
Sandeep Sharma, J.
1. Bail petitioner namely, Kehar Sigh, who is behind the bars since 31.7.2019, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in case FIR No. 82/2019, dated 31.7.2019, under Section 306 of IPC, registered at police Station, Anni, District Kullu, Himachal Pradesh.
2. Sequel to order dated 10.12.2019, SI Dharam Singh has come present alongwith the record. Mr. Sudhir Bhatnagar, learned Additional Advocate General, has also placed on record fresh status report, prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned.
3. Close scrutiny of the record/status report reveals that on 31.7.2019, complainant namely, Jai Chand lodged a report at police Station, Anni, District Kullu, Himachal Pradesh that her daughter namely, Babli, whose marriage was solemnized 12 years back, has committed suicide on account of maltreatment and harassment meted to her by her husband i.e. present bail petitioner. Complainant alleged that immediately after the marriage, bail petitioner and other family members started torturing, harassing and maltreating her deceased daughter on account of dowry. He also alleged that bail petitioner oftenly used to compel her deceased daughter to bring money from her parents. He alleged that 8-10 days back her deceased daughter telephoned him that her husband (bail petitioner) is torturing her for no reason, but he consoled her daughter and assured that very soon he would visit her house. Complainant alleged that in the morning of 30th July, 2019 he received telephonic call from her deceased daughter that the bail petitioner is giving her beatings for no reasons and thereafter at 2:00 PM he received information that her daughter is serious. Complainant, as named hereinabove, alleged that her deceased daughter consumed poison on account of cruelty meted to her by bail petitioner as such, appropriate action in accordance with law may be taken against him. In the aforesaid background, a case under Section 306 of IPC, came to be lodged against the bail petitioner on 31.7.2019 and since then he is behind the bars.
4. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting that challan stands filed in the competent Court of law and nothing remains to be recovered from the bail petitioner, contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency. Learned Additional Advocate General while making this Court to peruse the statements having been made by the complainant as well as other persons made serious attempt to persuade this Court to agree with his contention that deceased was compelled to commit suicide on account of ill-treatment meted to her by her husband i.e., bail petitioner. Learned Additional Advocate General contended that since minor son of the deceased, who at present reside with the bail petitioner, is a material prosecution witness, it would not be in the interest of justice to enlarge the bail petitioner on bail at this stage because in the event of his being enlarged on bail, he may dissuade his minor son from deposing against him.
5. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that on 31st July, 2019 deceased committed suicide by consuming poison, but investigation conducted so far reveals that none of the independent witness has stated something specific with regard to ill-treatment and mental harassment to the deceased by the bail petitioner or his other family members. It is only complainant(father) and sister- in-law of the deceased, who have stated that deceased committed suicide on the instigation of present bail petitioner. None of the witnesses, if any, from the locality, where deceased used to reside prior to alleged incident has stated something specific with regard to maltreatment, if any, meted to the deceased by the petitioner or other family members.
6. Leaving everything aside, statement of son of the deceased clearly suggests that before the alleged incident, some verbal altercation took place inter se bail petitioner and the deceased, whereafter deceased consumed poison, but definitely that cannot be a ground to conclude at this stage that bail petitioner compelled/instigated the deceased to commit suicide. The question "whether cruelty was being meted to deceased on account of bringing less dowry and deceased was being given merciless beating by bail petitioner"? is to be decided and determined by the Court below on the basis of the totality of evidence to be collected on record by the Investigating Agency and as such, this Court sees no reason to curtail the freedom of bail petitioner for indefinite period during trial, especially when nothing remains to be recovered from him. It is not in dispute that there is none to take care of minor son of the bail petitioner.
7. Hon'ble Apex Court as well as this Court in catena of cases have held that freedom of an individual cannot be curtailed for indefinite period during the pendency of the trial because one is deemed to be innocent until his/her guilt, is not proved in accordance with law. In the case at hand, guilt, if any, of the bail petitioner is yet to be proved in accordance with law by leading cogent and convincing evidence. Apprehension expressed by learned Additional Advocate General with regard to petitioner's fleeing from justice in the event of his being enlarged on bail, can be best met by putting him to stringent conditions, as has been fairly admitted by the learned counsel representing the bail petitioner.
8. Recently, 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 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 Re-Inhuman Conditions in 1382 Prisons.
9. The Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation MANU/SC/1375/2011 : (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."
10. 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.
11. The Hon'ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another MANU/SC/0916/2010 : (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;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail.
12. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 1,00,000/- (Rs. One lakh) with one surety in the like amount to the satisfaction of the learned trial Court, with following conditions:
a. He shall make himself 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. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
c. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or the Police Officer; and
d. He shall not leave the territory of India without the prior permission of the Court.
e. He shall surrender passport, if any, held by him.
13. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
14. 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 bail petition stands disposed of accordingly.
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