IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

.

Cr.MP(M) No. 2070 of 2019

Reserved on : November 29 , 2019
Date of Decision: December 6 , 2019

Bimla Devi …Petitioner.
Versus
State of Himachal Pradesh …Respondent.

Coram:

The Hon’ble Mr. Justice Anoop Chitkara, Judge.

Whether approved for reporting?1 Yes.

For the petitioner : Mr. Rajiv Jiwan, Senior Advocate with Mr.
Ritesh Bhardwaj, Advocate, for the petitioner.

For the respondent : M/s. Anil Jaswal, Ashwani K. Sharma and Nand

Lal Thakur, Additional Advocates General for
the respondent/State.

Anoop Chitkara, Judge.

Upon arrest as a member of an unlawful cohort of orthodox

villagers, who in furtherance of common object, smeared soot on

the face of an old lady, garlanded her with shoes, broke her house-

hold articles along with idols of worship, on the superstition that she

indulged in witchcraft, and also smeared soot on her middle-aged

daughter, who came to her rescue, the accused has come up before

this Court, seeking regular bail.

1

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

06/12/2019 20:28:23 :::HCHP
2

2. The gist of the facts, apposite to adjudicate the present bail

petition, traces its origin to the complaint dated Nov 9, 2019, scribed

.

by Shri Ajay Kumar, a practicing Advocate. He informed the SHO of

Police Station Sarkaghat, Distt. Mandi, H.P., that his mother-in-law is

an old lady, and has two daughters. On Oct 17, 2019, the villagers

misbehaved with her. Again, on Oct 29, 2019, villagers gathered and

arrived at her house, broke open the doors, and threw away all the

articles, including idols of worship. He stated that even on that date,

he had made a complaint. He further mentioned that on Nov 6,

2019, the ladies and boys of the village administered beatings to his

mother-in-law and sister-in-law. They also smeared their faces with

soot and garlanded his mother-in-law with a string of shoes. They

also made videography of all these acts and posted it on social

media. After that, he named the accused persons and sought their

prosecution.

3. Based on this information, Police Station Sarkaghat, Distt.

Mandi, registered in its file, FIR No. 184 of 2019, dated 9.11.2019,

for the commission of offences punishable under Sections 147, Section149,

Section454, Section455, Section435, Section355, Section427, Section504, Section506, Section508, Section323, Section500, Section380, Section201,Section120B of

IPC. The Police swiftly arrested the accused. As per the statement of

Shri Nand Lal Thakur, Additional Advocate General for the State of

06/12/2019 20:28:23 :::HCHP
3

Himachal Pradesh, the investigation is going on under the active

supervision of the police officials of the highest ranks.

.

4. I have heard Mr. Rajiv Jiwan, learned Senior Counsel assisted

by Mr. Ritesh Bhardwaj, Advocate, for the bail petitioner and M/s Anil

Jaswal, Ashwani K. Sharma, and Nand Lal Thakur, learned Addl.

Advocates Generals, for the State of Himachal Pradesh. Sh.

Chander Paul Singh DySP was also present in Court, and he had

produced the case file, which was perused and duly returned on Nov

30, 2019, through Shri Nand Lal Thakur, Additional Advocate

General.

5. Mr. Rajiv Jiwan, learned Senior Counsel representing the

accused submits that indisputably, the incident is dehumanizing.

Still, due to the intense pressure of social groups, it has become a

media trial. He further contends that due to public demand, the

Police roped in even those people, who were neither present in the

mob nor played any role.

6. On the other hand, learned Addl. Advocates General have

vehemently opposed the bail petition, stating that due to intense

pressure of the accused, the victims even did not dare to report.

Referring to the status report of the Police, they pointed out that

there is so much anger in the society and also amongst the

members of the social organizations against the accused that in

06/12/2019 20:28:23 :::HCHP
4

case the Court releases them on bail, their lives may be at risk. The

status report reveals that this Court, in Writ jurisdiction, has taken

.

cognizance of this matter, which is pending adjudication. The status

report also shows that these people are so orthodox that they may

repeat such kind of acts. Based on these submissions learned,

Additional Advocates General asserted that none of these twenty-

four accused persons, who are in the judicial custody, deserve bail

during the trial.

REASONING:

7. In this golden age, when the world is witnessing the

information technology revolution, which owes gratitude to the

hugely significant role and mental aptitude of Indians, reminding us

of Srinivasa Ramanujan, Raja Ram Mohan Roy and Mahatma

Buddha, got eclipsed with this hate crime. Perpetrators included a

woman who had seen the first Sunrise of independent India and also

the Constitutional commitment to profess scientific temper. What

shocks is the presence of an eighteen years old millennial in the

mob, undoubtedly, representing a small minority, floating in the

direction reverse to his peers, who are our hopes. In between these

two, there were around twenty-two more adults. The highly unethical

behavior of these weird participants had no respect for human

dignity, no love, and no self-respect.

06/12/2019 20:28:23 :::HCHP
5

8. The kind of fear, some of the accused had exonerated in the

victims, reflects from the fact that the incident remained buried under

.

the heaps of superstition, fear of deities, forgetting that here people

worship more female Gods than the Male Gods. The accused not

only committed offence with victims, and deities, but also with the

society and the State, letting down all. Perhaps this isolated incident

would not cast aspersions on the people of the region, who have an

extremely positive mindset, and are rational thinkers.

9. Adherence to the Rule of Law is true Constitutional Dharma,

where none loses her liberty, without following the procedure

established by Law. Let these violators know the grace of our

Constitution.

10. Pre-trial incarceration needs to be justified depending upon

the heinous nature of the offence, terms of the sentence prescribed

in the Statute for such a crime, accused fleeing from justice,

hampering the investigation, and doing away with witnesses. The

Court is under the Constitutional obligation to safeguard the interests

of the victim, the accused, the society, and the State.

11. Given the above reasoning, in my considered opinion, the

judicial custody of the petitioner/accused is not going to serve any

purpose whatsoever, and I am inclined to grant bail on the following

grounds, but subject to stringent conditions:

06/12/2019 20:28:23 :::HCHP
6

(a) In the status report the Prosecution has alleged
against the present bail petitioner Bimla Devi that she is

.

involved in all offences except under Section 354 IPC,

and that she was the one who had smeared soot on the
face of victim.

(b) As per the Sections mentioned in FIR, the maximum
sentence is of ten years of imprisonment, under Section
455 of IPC, which relates to lurking house-trespass, after

preparation made for causing hurt, assault. Since no
offence prescribes sentence for twenty years or life, as
such, there would be different parameters to consider the

plea of bail.

(c) The investigation is almost at the final stages of
completion.

(d) The petitioner/accused is in judicial custody since Nov

10, 2019.

(e) The petitioner is a permanent resident of the address

mentioned in the memo of parties, as such presence can
always be secured.

(f) The petitioner has no criminal history.

12. Consequently, the present petition is allowed. The

petitioner/accused shall be released on bail in the present case, in

connection with the FIR mentioned above, on her furnishing

personal bond in the sum of `10,000/- (rupees ten thousand) with

two sureties in the like amount, to the satisfaction of the learned Trial

Court/Chief Judicial Magistrate/Addnl. Chief Judicial Magistrate or

any Judicial Magistrate of District Mandi, HP.

06/12/2019 20:28:23 :::HCHP
7

13. The Court executing the personal and surety bonds shall

ascertain the identity of the bail-petitioner, her family members, and

.

of sureties, through AADHAR Card, Pan Card, Ration Card, etc. The

petitioner shall mention phone numbers and other details, on the

reverse page of the bonds.

14. The Counsel for the accused and the attesting official shall

explain all conditions of this bail to the petitioner.

15. This Court is granting the bail, subject to the conditions

mentioned herein. The petitioner/accused undertakes to comply with

all directions given in this order, and the furnishing of bail bonds by

the petitioner/accused is acceptance of all such conditions:

a) The petitioner undertakes to attend the trial.

b) The petitioner shall join the investigation as and when
called by the Investigating Officer. However, whenever the

investigation takes place within the boundaries of the

Police Station or the Police Post, then the accused shall
not be called before 9 AM and shall be let off before 5 PM.

c) The petitioner shall co-operate in the investigation.

d) The petitioner shall not hamper the investigation.

e) The petitioner undertakes not to threaten or browbeat
or use any pressure tactics on the victims, complainant,
and witnesses,

f) The petitioner shall neither influence nor try to control
the investigating officer, in any manner whatsoever.

06/12/2019 20:28:23 :::HCHP
8

g) The petitioner undertakes not to 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 from disclosing such facts to the Court or
any Police Officer or tamper with the evidence.

h) In case the petitioner commits any offence prescribing
the sentence of imprisonment of more than three years,
within thirty days of knowledge of such FIR, the petitioner

shall intimate SHO of the present police station, with all the
details of the present FIR as well as the new FIR. In such
a situation, it shall be open for the State to apply to this

Court for cancellation of this bail, if it deems fit and proper.

i) Within 30 days from today, the petitioner shall sell, or
surrender, all firearms along with ammunition, and arms
licenses, if any, to the authority which had given such

permission.

j) The Petitioner shall not enter within a radius of five

kilometers of the residence of both the victims, measuring
from the shortest route, until the recording of the

statements of all witnesses, except Police officials, during
trial. In case the petitioner needs modification of this

condition, then she may apply to this Court, supported with
written permission from the victim, obtained through
Pradhan, Up Pradhan, or Ward Member of the Panchayat,
where the victim resides.

16. The present bail order is only for the FIR mentioned above. It

shall not be construed to be a blanket order of bail in all other cases,

if any, registered against the petitioner.

06/12/2019 20:28:23 :::HCHP
9

17. Any observation made hereinabove is neither an expression of

opinion on the merits of the case, nor shall the trial Court advert to

.

these comments.

18. The SHO/Additional SHO of the concerned Police Station or

the Investigating Officer to handover a copy of this order to the

victims and explain it to them.

Petition stands allowed in the terms mentioned above.

Copy dasti.

r (Anoop Chitkara),

Judge.
December 6 , 2019 (PK)

06/12/2019 20:28:23 :::HCHP