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Ashok Bhatoya vs State Of Himachal Pradesh on 31 January, 2020

1

HON’BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr.MP(M) No.79 of 2020
Decided on: 31.01.2020

Ashok Bhatoya ……….Petitioner

.

Versus

State of Himachal Pradesh …….Respondent

Coram:

Hon’ble Ms. Justice Jyotsna Rewal Dua, Vacation Judge.

Whether approved for reporting?1
For the petitioner : Mr. K.S. Thakur, Advocate.

For the respondent
r :

Mr. Ranjan Sharma, Mr. Sudhir
Bhatnagar and Mr. P.K. Bhatti,
Additional Advocate Generals with
Ms. Divya Sood and Ms. Svaneel
Jaswal, Dy. Advocate Generals.

ASI Sanjeev Singh, Police Station,
Jogindernagar, Distt. Mandi (H.P.)

Jyotsna Rewal Dua, Vacation Judge (Oral).

The bail petitioner has preferred the instant petition

under Section 438 of Code of Criminal Procedure for grant of

anticipatory bail in FIR No.4 of 2020, dated 03.01.2020, under

Sections 302, 307, 379, 120(B) 34 of Indian Penal Code,

registered at Police Station Jogindernagar, District Mandi (H.P.).

2. The interim protection was granted to the petitioner

on 10.01.2020 subject to the terms and conditions stipulated

therein.

1

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

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2

3. The police has filed the status report today, which is

taken on record. I have heard learned counsel for the parties

and have also gone through the status report as well as

.

relevant police record for the purpose of adjudication of present

petition.

4. Learned counsel for the bail petitioner, submits that

the sister of the bail petitioner was married with one Mr. Amit

Kumar in the year 2015; their relations after marriage did not

remain cordial; sister of bail petitioner was maltreated by her

in-laws, dowry was demanded by her in-laws from her; the

father of bail petitioner lodged FIR under Section 498-A of the

Indian Penal Code against the in-laws of the sister of bail

petitioner, which is yet pending adjudication before learned

JMIC, Court No.3, Shimla; the sister of bail petitioner has also

initiated proceedings under Section 12 of the Domestic

Violence Act against her husband and his family members,

which is also pending adjudication before learned JMIC, Court

No.1, Shimla; it is also submitted that the sister of bail

petitioner has also filed application under Section 125 Cr.P.C. for

maintenance against her husband, which is also pending

adjudication before learned Family Court at Shimla; a divorce

petition between the sister of bail petitioner and her husband is

also pending adjudication before learned District Judge,

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Bilaspur; the sister of bail petitioner is living separately from

her husband w.e.f. April, 2018.

5. Per contra, learned Additional Advocate General,

.

submits that on the direction of learned Judicial Magistrate, 1 st

Class, Jogindernagar, instant FIR No.4/2020, dated 03.01.2020,

was lodged on the complaint of one Manoj Kumar, ‘Jeth’ of the

sister of bail petitioner against the sister of bail petitioner and

her family members, under Section 302, 307, 379, 120(B) 34

of the Indian Penal Code at Police Station, Jogindernagar,

District Mandi(H.P.), alleging therein that Smt. Rameshwari

Devi, mother-in-law of the sister of bail petitioner, was poisoned

by the sister of bail petitioner, leading to her death on

30.11.2017. The gist of the prosecution case is that:- one Sh.

Manoj Kumar (Jeth) of sister of the bail petitioner came across a

Diary allegedly written by sister of the bail petitioner, wherein,

she wrote about poisoning her mother-in-law; it has further

come in the investigation that the sister of the bail petitioner

has given statement to the police under Section 161 of Code of

Criminal Procedure to the effect that she does not remember

the contents of the Diary and that she was pressurized to write

by her in-laws while she was residing with them. On the basis of

prosecution case, he contends that the bail petitioner is guilty

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of committing heinous offence and therefore, does not deserve

to be enlarged on bail.

6. From the above, following material aspects emerge:-

.

(i). Matrimonial and family disputes, alongwith

disputes of criminal nature, exist between

complainant and his family members, vis-a-vis,

sister of the bail petitioner and her family

members (accused persons);

(ii). Marriage of the sister of bail petitioner with Sh.

Amit Kumar, the brother of complainant, has

turned sour. Relations between the parties are

far from cordial. Divorce petition has already

been filed by Sh. Amit Kumar against the sister

of bail petitioner, which is stated to be pending

adjudication. Proceedings under Sections 498A

and 125 of Code of Criminal Procedure besides

proceedings under Section 12 of the Domestic

Violence Act, have been initiated by the sister

of bail petitioner and her family members

against her in-laws, which are also pending

adjudication;

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(iii). Instant FIR was lodged more than two years

after the death of Smt. Rameshwari Devi,

mother-in-law of the sister of bail petitioner;

.

(iv). It has been averred in the bail petition that

Smt. Rameshwari Devi was suffering from

various ailments and died a natural death on

30.11.2017. Instant FIR, registered on

03.01.2020, is an attempt on the part of

in-laws of the sister of bail petitioner out of

their frustration and vindictive and revengeful

attitude towards her and her family; and

(v). The sister of bail petitioner has not admitted

the contents of the Diary. There is no evidence

against the family members of the sister of

bail petitioner who have also been arrayed as

accused in the instant FIR.

Therefore, in my considered view, at this stage, no

fruitful purpose will be served by sending the bail petitioner to

judicial custody. He is permanent resident of H.No.1-2, Courteen

Hall, Near Rashtrapati Niwas, Boileauganj, Shimla (H.P.), as

such, his presence can always be secured during trial.

7. It is apt to refer to guidelines for grant/refusal of

anticipatory bail, reiterated by Five Judges Constitution Bench

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of the Hon’ble Apex Court, recently in Special Leave Petition

(Criminal) No.7281-7282 of 2017, titled Sushila

Aggarwal and others versus State (NCT of Delhi)

.

Another, decided on 29.01.2020, whereby the Apex Court,

while overruling Siddharam Satlingappa Mhetre v. State of

Maharashtra and Others (2011) 1 SCC 694, to the extent it

held that no restrictive conditions can be imposed at all while

granting anticipatory bail, has observed as follows:-

“(3).Nothing in Section 438 Cr. PC, compels or obliges
courts to impose conditions limiting relief in terms
of time, or upon filing of FIR, or recording of
statement of any witness, by the police, during
investigation or inquiry, etc. While considering an

application (for grant of anticipatory bail) the court has to

consider the nature of the offence, the role of the person,
the likelihood of his influencing the course of
investigation, or tampering with evidence (including
intimidating witnesses), likelihood of fleeing justice
(such as leaving the country), etc. The courts would
be justified – and ought to impose conditions

spelt out in Section 437 (3), Cr. PC [by virtue of Section
438 (2)]. The need to impose other restrictive
conditions, would have to be judged on a case by case
basis, and depending upon the materials produced by the

state or the investigating agency. Such special or
other restrictive conditions may be imposed if the case

or cases warrant, but should not be imposed in a
routine manner, in all cases. Likewise, conditions
which limit the grant of anticipatory bail may be granted,
if they are required in the facts of any case or cases;

however, such limiting conditions may not be
invariably imposed.

(4) Courts ought to be generally guided by
considerations such as the nature and gravity of the
offences, the role attributed to the applicant, and the
facts of the case, while considering whether to
grant anticipatory bail, or refuse it. Whether to grant or
not is a matter of discretion; equally whether and if so,
what kind of special conditions are to be imposed (or not

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imposed) are dependent on facts of the case, and subject
to the discretion of the court.”

Hon’ble Apex Court in (2019) 9 SCC 24, titled as P.

Chidambaram versus Directorate of Enforcement, while

.

dealing with the powers of the Cout to grant anticipatory bail

under Section 438 Cr.P.C., held as under:-

69. Ordinarily, arrest is a part of procedure of the
investigation to secure not only the presence of the
accused but several other purposes. Power under Section
438 Cr.P.C. is an extraordinary power and the same has
to be exercised sparingly. The privilege of the pre-arrest
bail should be granted only in exceptional cases. The

judicial discretion conferred upon the court has to be
properly exercised after application of mind as to the
nature and gravity of the accusation; possibility of
applicant fleeing justice and other factors to decide
whether it is a fit case for grant of anticipatory bail. Grant

of anticipatory bail to some extent interferes in the

sphere of investigation of an offence and hence, the
court must be circumspect while exercising such power
for grant of anticipatory bail. Anticipatory bail is not to be
granted as a matter of rule and it has to be granted only
when the court is convinced that exceptional

circumstances exist to resort to that extraordinary
remedy.

72. We are conscious of the fact that the legislative
intent behind the introduction of Section 438 Cr.P.C is to

safeguard the individual’s personal liberty and to protect
him from the possibility of being humiliated and from

being subjected to unnecessary police custody. However,
the court must also keep in view that a criminal offence
is not just an offence against an individual, rather the
larger societal interest is at stake. Therefore, a delicate

balance is required to be established between the two
rights – safeguarding the personal liberty of an individual
and the societal interest. It cannot be said that refusal to
grant anticipatory bail would amount to denial of the
rights conferred upon the appellant under Article 21 of
the Constitution of India.

74. Ordinarily, arrest is a part of the process of the
investigation intended to secure several purposes. There
may be circumstances in which the accused may provide
information leading to discovery of material facts and

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relevant information. Grant of anticipatory bail may
hamper the investigation. Pre-arrest bail is to strike a
balance between the individual’s right to personal
freedom and the right of the investigating agency to
interrogate the accused as to the material so far
collected and to collect more information which may lead
to recovery of relevant information. In State Rep. By The

.

CBI v. Anil Sharma (1997) 7 SCC 187, the Supreme Court

held as under:-

“6. We find force in the submission of the CBI that
custodial interrogation is qualitatively more elicitation-

oriented than questioning a suspect who is well
ensconced with a favourable order under Section 438 of
the Code. In a case like this effective interrogation of a
suspected person is of tremendous advantage in
disinterring many useful informations and also materials
which would have been concealed. Success in such

interrogation would elude if the suspected person knows
that he is well protected and insulated by a pre-arrest bail
order during the time he is interrogated. Very often
interrogation in such a condition would reduce to a mere
ritual. The argument that the custodial interrogation is

fraught with the danger of the person being subjected to

third-degree methods need not be countenanced, for,
such an argument can be advanced by all accused in all
criminal cases. The Court has to presume that
responsible police officers would conduct themselves in a
responsible manner and that those entrusted with the

task of disinterring offences would not conduct
themselves as offenders.”

75. Observing that the arrest is a part of the investigation
intended to secure several purposes, in Adri Dharan Das

v. State of W.B. (2005) 4 SCC 303, it was held as under:-
“19. Ordinarily, arrest is a part of the process of

investigation intended to secure several purposes. The
accused may have to be questioned in detail regarding
various facets of motive, preparation, commission and
aftermath of the crime and the connection of other

persons, if any, in the crime. There may be circumstances
in which the accused may provide information leading to
discovery of material facts. It may be necessary to curtail
his freedom in order to enable the investigation to
proceed without hindrance and to protect witnesses and
persons connected with the victim of the crime, to
prevent his disappearance, to maintain law and order in
the locality. For these or other reasons, arrest may
become an inevitable part of the process of investigation.
The legality of the proposed arrest cannot be gone into in

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an application under Section 438 of the Code. The role of
the investigator is well defined and the jurisdictional
scope of interference by the court in the process of
investigation is limited. The court ordinarily will not
interfere with the investigation of a crime or with the
arrest of the accused in a cognizable offence. An interim
order restraining arrest, if passed while dealing with an

.

application under Section 438 of the Code will amount to

interference in the investigation, which cannot, at any
rate, be done under Section 438 of the Code.”

76. In Siddharam Satlingappa Mhetre v. State of

Maharashtra and Others (2011) 1 SCC 694 , the
Supreme Court laid down the factors and parameters to
be considered while dealing with anticipatory bail. It was
held that the nature and the gravity of the accusation and
the exact role of the accused must be properly
comprehended before arrest is made and that the court

must evaluate the available material against the accused
very carefully. It was also held that the court should also
consider whether the accusations have been made only
with the object of injuring or humiliating the applicant by
arresting him or her.

77. After referring to Siddharam Satlingappa Mhetre and

other judgments and observing that anticipatory bail can
be granted only in exceptional circumstances, in Jai
Prakash Singh v. State of Bihar and another (2012) 4 SCC
379, the Supreme Court held as under:-

“19. Parameters for grant of anticipatory bail in a
serious offence are required to be satisfied and further
while granting such relief, the court must record the
reasons therefor. Anticipatory bail can be granted only

in exceptional circumstances where the court is prima
facie of the view that the applicant has falsely been
enroped in the crime and would not misuse his liberty.

(See D.K. Ganesh Babu v. P.T. Manokaran (2007) 4 SCC
434, State of Maharashtra v. Mohd. Sajid Husain Mohd.
S. Husain (2008) 1 SCC 213 and Union of India v.
Padam Narain Aggarwal (2008) 13 SCC 305.)””

In view of the ratio of above law and considering

totality of the facts and circumstances of the case, as has come

on record at this stage; and also taking into account the fact

that the bail petitioner has joined the investigation and is

cooperating with the Investigating Agency; the bail petitioner is

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permanent resident of H.No.1-2, Courteen Hall, Near

Rashtrapati Niwas, Boileauganj, Shimla (H.P.), the present is a

case where the interim protection granted on 10.01.2020 to the

.

petitioner deserves to be confirmed. Accordingly, in the event

of arrest of the petitioner in FIR No.4 of 2020, dated

03.01.2020, under Sections 302, 307, 379, 120(B) 34 of

Indian Penal Code, registered at Police Station Jogindernagar,

District Mandi (H.P.)., he shall be enlarged on bail on his

furnishing personal bond in the sum of Rs.25,000/-, with one

local surety in the like amount, to the satisfaction of the

Arresting Officer, subject to the following conditions:-

i). The bail petitioner shall appear and join the
investigation as and when directed to do so by
the Investigating Officer;

ii). The bail petitioner shall not contact the

complainant and witnesses, to threaten or
browbeat them or to use any pressure tactics
in any manner whatsoever;

iii). The bail petitioner shall not make any
inducement, threat or promise, directly or

indirectly, to the Investigating Officer or any
person acquainted with the facts of the case to
dissuade him/her from disclosing such facts to

the Court or any Police Officer or tamper with
the evidence;

iv). In case of launching of prosecution, The bail
petitioner shall regularly attend the trial on
each and every date of hearing and if
prevented by any reason to do so, shall seek
exemption from personal appearance by filing
appropriate application;

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v). The bail petitioner shall not leave India without
prior permission of the Court; and

vi). The bail petitioner shall not tamper with
prosecution evidence nor hamper investigation
of the case, in any manner, whatsoever.

.

It is clarified that the observations made above are

only for the purpose of adjudication of the present bail petition

and learned Trial Court shall not be influenced by any of these

observations while deciding the case on merits. It shall be open

for the prosecution to move for cancellation of the bail in case

the petitioner abuses the liberty granted and breaches any of

the conditions of bail.

The petition stands disposed of in the above terms.

Copy ‘Dasti’.

(Jyotsna Rewal Dua)
January 31, 2020 Vacation Judge
(Yashwant)

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