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Mehar Chand Bhatoya vs State Of Himachal Pradesh on 31 January, 2020

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HON’BLE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr.MP(M) No.78 of 2020
Decided on: 31.01.2020

Mehar Chand 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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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 daughter of the bail petitioner was married with one Mr.

Amit Kumar in the year 2015; their relations after marriage did

not remain cordial; daughter of bail petitioner was maltreated

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

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

Penal Code against the in-laws of his daughter, which is yet

pending adjudication before learned JMIC, Court No.3, Shimla;

the daughter 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 daughter 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 daughter

of bail petitioner and her husband is also pending adjudication

before learned District Judge, Bilaspur; the daughter of bail

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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

daughter of bail petitioner against the daughter 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 daughter of bail

petitioner, was poisoned by the daughter 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 daughter of the bail

petitioner came across a Diary allegedly written by daughter of

the bail petitioner, wherein, she wrote about poisoning her

mother-in-law; it has further come in the investigation that the

daughter 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

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contends that the bail petitioner is guilty 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,

daughter of the bail petitioner and her family

members (accused persons);

(ii). Marriage of the daughter 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 daughter 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 daughter of bail petitioner and

her family members against her in-laws,

which are also pending adjudication;

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

after the death of Smt. Rameshwari Devi,

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mother-in-law of the daughter 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 daughter of bail petitioner out of

their frustration and vindictive and revengeful

attitude towards her and her family; and

(v). The daughter of bail petitioner has not

admitted the contents of the Diary. There is no

evidence against the family members of the

daughter 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

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

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

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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
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

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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
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

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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

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

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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;

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

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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

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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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