Damodri Devi Vs State of Hp

¶1

Neutral Citation No. ( 2024:HHC:4217

¶2

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

¶3

Cr. MP (M) No. 563 of 2024 Reserved on: 20.06.2024 Date of Decision: 1^st July, 2024.

¶4

Damodri Devi ...Petitioner

¶5

Versus

¶6

State of Himachal Pradesh & Anr. ...Respondents

¶7

Coram Hon’ble Mr Justice Rakesh Kainthla , Judge. Whether approved for reporting?¹ No.

¶8

For the petitioner	: Mr. Rupinde	r Singh, A	dvocate.
For the respondents	: Mr. Prasha Advocate respondent	nt Sen, General No.1/State	Deputy for .
	: Mr. Karan Advocate No.2/victim.	Singh for Res	Kanwar, pondent

¶9

Rakesh Kainthla, Judge

¶10

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 363, 376 and 342 of the Indian Penal Code (for short ‘IPC’) and Sections 4, 6, and 17 of the Protection of Children from Sexual Offences Act, 2012 (in

¶11

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

¶12

2

¶13

short POCSO Act) vide F.I.R. No. 294 of 2023 dated 14.12.2023 registered at Police Station Sundernagar, District Mandi, H.P. It has been asserted that the petitioner was arrested by the police on 16.01.2024. The investigation is complete. The charge sheet has been filed by the police and now the case is fixed for consideration of charge. The petitioner is undergoing treatment from PGI Chandigarh. Her husband is suffering from Prostate Cancer and is undergoing treatment for Radiotherapy at Behgal Institute of IT & Technology and Behgal Hospital Mohali, Punjab. The petitioner would abide by all the terms and conditions, which may be imposed by the Court. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail.

¶14

The petition is opposed by filing a status report, asserting that the victim’s mother made a complaint to the police stating that her daughter aged 17 years had left home on 13.12.2023. She did not return to her home. The police lodged the F.I.R. and conducted the investigation. The police received a secret information and recovered the victim from the house of the accused Kuldeep’s sister. The victim remained with the accused-Kuldeep in his home from 13.12.2023 till 10.01.2024. The police arrested accused Kuldeep. The victim was medically examined. The case property was sent to RFSL, Mandi and

¶15

3

¶16

as per the result of the analysis, semen stains were found on the underwear of the victim. The police seized the mobile phone of taccused Kuldeep Singh and as per the report of the analysis, no obscene video was found in it. The present petitioner had kept the victim in her home for 27-28 days and had not informed any person. Her son raped the victim and the petitioner helped him. The police presented the challan before the Court. The police cited 39 witnesses, out of whom witnesses at serial No. 1 and 4 were summoned for 17.06.2024. Hence, the status report.

¶17

I have heard Mr. Rupinder Singh, learned counsel for the petitioner, Mr. Prashant Sen, learned Deputy Advocate General for respondent No.1-State and Mr. Karan Singh Kanwar, learned counsel for respondent No.2/victim.

¶18

Mr. Rupinder Singh, learned counsel for the petitioner submitted that the petitioner is innocent and she was falsely implicated. There is insufficient material to show that the petitioner had kept the victim confined to her home. Victim was not even recovered from her house. The petitioner is an aged woman. Her husband is suffering from Prostate Cancer. No useful purpose would be served by detaining her in judicial custody; therefore, he prayed

¶19

4

¶20

that the present petition be allowed and the petitioner be released on bail.

¶21

Mr. Prashant Sen, learned Deputy Advocate General for the State submitted that the petitioner is involved in the commission of a heinous crime. She had confined the victim to her home and did not allow her to move outside. She has abetted the act of sexual intercourse by her son. Releasing her on bail will be harmful to the victim, who is yet to the examined. Hence, he prayed that the present petition be dismissed.

¶22

Mr. Karan Singh Kanwar, learned counsel for respondent No.2/victim adopted the submission advanced by learned Deputy Advocate General and prayed that the present petition be dismissed.

¶23

I have given considerable thought to the submissions at the bar and have gone through the records carefully.

¶24

The Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under:-

¶25

12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may

¶26

5

¶27

vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

¶28

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

¶29

(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

¶30

(d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

¶31

13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:

¶32

“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to

¶33

6

¶34

indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

¶35

( a ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

¶36

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

¶37

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124] .)”

¶38

A similar view was taken in State of Haryana vs Dharamraj

¶39

2023 SCC Online 1085, wherein it was observed:

¶40

7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus:

¶41

‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of

¶42

7

¶43

this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

¶44

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

¶45

(ii) nature and gravity of the accusation;

¶46

(iii) severity of the punishment in the event of conviction;

¶47

(iv) danger of the accused absconding or fleeing, if released on bail;

¶48

(v) character, behaviour, means, position and standing of the accused;

¶49

(vi) likelihood of the offence being repeated;

¶50

(vii) reasonable apprehension of the witnesses being influenced; and

¶51

(viii) danger, of course, of justice being thwarted by grant of bail.’

¶52

The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

¶53

As per the status report the victim was not recovered from the house of the petitioner but from accused Kuldeep sister’s house. This does not support the conclusion drawn by

¶54

the Investigating Officer that the petitioner had confined the victim to her home for 27-28 days.

¶55

The petitioner is a woman. The proviso to Section 437 of Cr.P.C. provides that a woman, a person aged less than sixteen

¶56

8

¶57

years, sick or infirm can be released on bail even if reasonable grounds exist for believing that the accused is guilty of the offences punishable with death or imprisonment for life. Therefore, a special provision has been made in favour of women, sick, infirm or a person aged less than sixteen years. The Courts can keep this special provision in mind while considering the bail application of the persons of these categories under Section 439 of Cr.P.C.

¶58

13 In the present case allegations against the petitioner are that she had confined the victim to her house and had facilitated the commission of rape by her son. These allegations even if accepted to be correct can subject her to the punishment for life and she can be released on bail in view of the proviso to Section 437 of Cr.P.C.

¶59

The petitioner has been in custody since 16.01.2024. She is aged 71 years as per the status report. As per the status report, 39 witnesses have been cited by the prosecution. This shows that the conclusion of the trial is going to take time. Keeping in view the age of the petitioner, the fact that she is a woman entitled to special treatment because of Section 437 of

¶60

9

¶61

Cr.P.C. and the nature of the allegations made against her, her further pre-trial detention is not justified.

¶62

In view of the above, the present petition is allowed and the petitioner is ordered to be released on bail subject to her furnishing bail bonds in the sum of ₹50,000/- with one surety in the like amount to the satisfaction of the learned Trial Court. The petitioner while on bail will abide by the following terms and conditions:-

¶63

(i) The petitioner will not intimidate the witnesses nor will she influence any evidence in any manner whatsoever.

¶64

(ii) The petitioner shall attend the trial and will not seek unnecessary adjournments.

¶65

(iii) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of intending a visit to the SHO, the Police Station concerned and the Trial Court.

¶66

(iv) The petitioner will furnish her mobile number, and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

¶67

It is expressly made clear that in case of violation of

¶68

any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

¶69

10

¶70

17. The observation made herein before shall remain

¶71

confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case

¶72

The petition stands accordingly disposed of. A copy of this order be sent to the Superintendent, District Jail Mandi, District Mandi, H.P. and the learned Trial Court by FASTER.

¶73

A downloaded copy of this order shall be accepted by the learned Trial Court while accepting the bail bonds from the petitioner and in case, said Court intends to ascertain the veracity of the downloaded copy of the order presented to it, same may be ascertained from the official website of this Court.

¶74

( Rakesh Kainthla) 1^st July,2024 Judge (ravinder)

¶75

Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL KARAN PRADESH SHIMLA, Phone= e5d61f6599be410af7c5f0b57379e225878f23c9ea 27b281046985b3b1fe0b75, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER= f72cf9165791d55ec939375291962d0d90d094876 SINGH bd59591426c0b1ce651f01f, CN=KARAN SINGH GULERIA Reason: I am the author of this document Location: GULERIA Date: 2024.07.01 12:15:31+05'30'Foxit PDF Reader Version: 2023.3.0

Damodri Devi v. State of Hp

Case brief

What is this about?

What did the court decide?

Damodri Devi v. State of Hp

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Mahinder Pal Vs State of Hp

Yogesh Kumar Thakur Vs State of Hp and Others

Mahender Kumar Vs State of Hp and Another

shiv kumar Vs State

Reena Devi Vs State of Hp

Deepak Kumar Vs State of Hp