Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(HP) 218

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
RANJAN SHARMA, J.
Babita Negi – Petitioner
Versus
State of Himachal Pradesh – Respondent
Cr. M.P. (M) No. 208 of 2024
Decided On : 12-03-2024

Advocates:
Advocate Appeared:
For the Petitioner: Virender Thakur.
For the Respondent: Ajit Sharma.

IMPORTANT POINT
Bail is a right and jail is an exception, and pre-conviction incarceration cannot form the basis for curtailing the liberty of an accused.

Headnote:
Bail - Pre-arrest bail under Section 438 of the Code of Criminal Procedure - Indian Penal Code, Sections 204, 406, 408, 420, 120-B - Gurbax Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565; Sushila Aggarwal vs. State (NCT of Delhi), (2020) 5 SCC 1; State of Haryana vs. Dharamraj, SLP (Crl.) No. 2256 of 2022
Fact of the Case:
The bail petitioner, Babita Negi, sought pre-arrest bail under Section 438 of the Code of Criminal Procedure originating from FIR No. 10 dated 10.02.2024, registered under Sections 204, 406, 408, 420 and 120-B of the Indian Penal Code at Police Station Chirgaon, District Shimla, H.P. The petitioner claimed false implication and provided an undertaking to join the investigation.
Finding of the Court:
The court considered the balance between the liberty of the accused and the danger to society, as well as the parameters laid down by the Hon’ble Apex Court in previous cases. The court found that the interim bail needed to be made absolute based on the facts and circumstances of the case.
Issues: Prima facie accusation, nature and gravity of the accusation, danger of the accused absconding or fleeing, character and behavior of the accused, likelihood of the offence being repeated, reasonable apprehension of the witnesses being influenced, danger of justice being thwarted by grant of bail.
Ratio Decidendi: The court emphasized that bail is a right and jail is an exception, and that pre-conviction incarceration cannot form the basis for curtailing the liberty of an accused. The court also highlighted the importance of not delving into the merits of the case or the evidence at the pre-arrest bail stage.
Final Decision: The interim bail granted on 13.2.2024 was made absolute, with the direction to the bail petitioner to continue to participate in the investigation as and when called, in accordance with the law.

JUDGMENT :

RANJAN SHARMA, J.

1. The bail petitioner, Babita Negi, has come up before this Court, seeking pre-arrest bail under Section 438 of the Code of Criminal Procedure originating from FIR No. 10 dated 10.02.2024, registered under Sections 204, 406, 408 and 120-B of the Indian Penal Code, at Police Station Chirgaon, District Shimla, H.P.

2. The bail petition was listed before this Court on 13.2.2024 when this Court had passed the following orders:

“2. The petitioner-accused, Babita Negi, has come up before this Court seeking pre-arrest bail under Section 438 of the Code of Criminal Procedure, originating from FIR No. 10, dated 10.02.2024, registered under Sections 204, 406, 408, 420 and 120-B of Indian Penal Code at Police Station Chirgaon, District Shimla, Himachal Pradesh.

3. The case of the bail petitioner-accused is that she is an elected Ward Member from Ward No. 1 of Nagar Panchayat Chirgaon, District Shimla. It is averred that between 6th to 8th November, 2021, the petitioner went to the office of Patwari concerned and had not taken any file from the office of aforesaid Patwari. It is further stated that the petitioner-accused has been falsely implicated and the facts have been fabricated in the FIR. Learned counsel for the petitioner stated that the incident had occurred in November, 2021 whereas, the FIR has been registered after about two years and two months. It is also averred in the bail application that the petitioner is a social and political worker and the FIR has been registered just to malign the image of the petitioner and to rope her on false and fictitious allegations. In the bail application, the petitioner has given the undertaking that the petitioner shall join the investigation as and when called for and shall neither temper with the evidence and witnesses in any manner.

4. In the entirety of facts and circumstances as borne out from the application as well as documents annexed thereto, it is ordered that in the event of arrest, the bail petitioner-accused herein, be released on interim bail, till the next date of hearing, with the following conditions:

(i) In the event of the arrest of the petitioner, she shall be released on bail on execution of her personal bond in the sum of Rs. 50,000/- with one surety, in the like amount, to the satisfaction of Station House Officer, Police Station Chirgaon, District Shimla.

(ii) The petitioner shall report at Police Station Chirgaon, District Shimla H.P. on 14.02.2024 at 3:00 p.m.

(iii) The petitioner shall disclose her functional E-Mail IDs/Whatsapp number and that of his surety to the SHO/IO concerned on 14.02.2024.

(iv) The petitioner shall not hinder the smooth flow of the investigation and shall join the investigation, on each and every date, as and when called, by the Investigating Agency;

(v) The petitioner shall not jump over the bail and also shall not leave the State of Himachal Pradesh without prior information of the Court.

(vi) That the petitioner shall not tamper with the witnesses or the evidence in any manner.

(vii) The petitioner shall not directly or indirectly make any inducement, thereat or promise to any person acquainted with the facts of the case or the witnesses.

(viii) The petitioner shall neither involve himself nor shall be abet the commission of any offence. The involvement or abetting in any offence, shall entail cancellation of pre-arrest bail, automatically.

(ix) It is clarified that violation of any of the conditions imposed hereinabove shall entail cancellation of bail automatically.

(x) The respondents are at liberty to move this Court for modification or cancellation of bail, if circumstances, so necessitate or in case of violation of any of the conditions mandated herein.”

3. The matter was then listed on 16.2.2024, when the State Authorities were directed to file the status report. On 4.3.2024, status report was filed by the State Authorities/ Prosecution before this Court.

4. Heard Mr. Virender Thakur, Learned Counsel for the petitioner