Punjab-Haryana High Court
Reena vs State Of Haryana on 21 January, 2025
Author: Sandeep Moudgil
Bench: Sandeep Moudgil
Neutral Citation No:=2025:PHHC:008527
CRM-M-58042-2024 1
228
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRM-M-58042-2024
DATE OF DECISION: 21.01.2025
REENA ...PETITIONER
Versus
STATE OF HARYANA ... RESPONDENT
CORAM: HON'BLE MR. JUSTICE SANDEEP MOUDGIL
Present: Mr. Rohit Mittal, Advocate and
Mr. Monu Sharma, Advocate for the petitioner(s).
Mr. Chetan Sharma, DAG, Haryana.
***
SANDEEP MOUDGIL, J (ORAL)
1. Relief Sought
This third petition petition has been filed under Section 439
Cr.P.C. seeking the concession of regular bail for the petitioner in FIR
No.05 dated 08.01.2022 under Sections 370(5), 120-B of IPC and 81 of JJ
Act, registered at Police Station DLF, Phase-III, District Gurugram.
2. Prosecution story set up in the present case as per the version
in the FIR reads as under :-
‘TO, SHO, DLF Phase 3 Gurugram 1, Umesh Lohia S/o
Bishambar Lohia r/o Nathupur U/37 Road DLF Phase 3,
Gurugram am residing 1 am a taxi driver. Today, I was going to my
village Nathupur, Gurugram by my Taxi no. HR 55 Y 1214 from
Plot Khyala Rajori Garden, Delhi. On reaching Dhola Kus, 2
women signaled me to stop my taxi. I stopped my vehicle because I
was signalled by the women. Both the women were carrying two
kids one in each lap aged about 20-25 days respectively. There was
male member also with them. They asked me about my destination.
I told them that I was agoing to Shankar Chowk, Gurugram.
Thereupon, they asked to leave them at IFCO Chowk, Gurugram:
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1 told them that I would leave them at Shankar Chowk, Gurugram.
I asked them to sit in my vehicle. It was my taxi. After some
distance from Dauhla Kua, the two women and the men asked me
as to whether I can drop them at Alwar, Rajasthan. I told them I
would charge Rs. 3000 and leave them at Alwar. Rajasthan. They
told me that they would give Rs. 4000 to me provided I first takes
them to Alwar, Rajasthan and drop them at Ghodewala Mandir
Raghveer Nagar, Delhi. I agreed to do the same. I took them to
Khedki, Dola toll, Gurugram and had CNG filled up in my vehicle.
Thereafter, I started for Alwar. They told me to stop at a Chemist
Shop on the way because they have to buy milk and bottle for the
Children. I stopped the car in the market after crossing Manesar
Flyover. The man in the vehicle purchased the milk bottle from the
medical store and also milk from the Halwai shop. They were
calling amongst themselves as Harjinder Singh, Surinder Kaur and
Neha. Meanwhile, one of the women received a telephone call.
They were talking amongst themselves that they would reach Alwar
within 2 hours. They will not stop overnight. After sometime, the
women in the car received the telephone again and she told that we
will take Rs.3,00,000. The women in my car told me that they are
not going to Alwar. I started back from Manesar Flyover for
Gurugram. I had a doubt that they have purchased the kids. I told
them that I have to buy some goods from DLF PH 3, Moulsari
Metro Station, Gurugram. Thereafter, I shall leave them at Delhi.
After sometime I stopped the car near Moulsari Road, Metro
Station, Gurugram and went to the market to buy the goods. I
suspected that they have stolen the kids from somewhere. I along
with 2 women, man and 2 kids came to the police Station, DLF PH
3, Gurugram. I have given my complaint to the police Station.
Legal action may kindly be taken against them.” 9953993098
complainant SD Umesh above mentioned complaint, Umesh Lohia
submitted the complaint himself in the police station. From the
perusal of the complaint offence under
section 37(5), 34 IPC were made out and the FIR was prepared on
the computer and the same was sent vide e-mail and Ilaqa
Magistrate. to Higher Authorities.’
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3. Contentions
On behalf of the petitioner
Learned counsel for the petitioner has submitted that the
petitioner has been falsely implicated in the present FIR as she was not
named in the FIR and was later arrested on the basis of the disclosure
statement made by co-accused. He has further submitted that the
petitioner has no role to play in the alleged offence as neither the
petitioner has sold any child nor the child has been recovered from her.
He contends that even the complainant has not supported the version of
the prosecution. He has further argued that the main accused namely
Satender has already been granted concession of regular bail by the Trial
Court vide order dated 07.03.2024 after having suffered custody of almost
2 years and 2 months whereas the petitioner is on better footing than the
main accused Satender as the petitioner has undergone custody for a
period of 3 years and 9 days and her antecedents are even clean, meaning
thereby she is not a habitual offender, therefore, prays for grant of regular
bail to the petitioner.
On behalf of the State
On the other hand, learned State Counsel appearing on
advance notice, accepts notice on behalf of respondent-State and has filed
the custody certificate of the petitioner, which is taken on record.
According to which, the petitioner is behind bars for 3 years and 9 days.
Learned State Counsel on instructions from the Investigating
Officer opposes the prayer for grant of regular bail stating that there are
heinous allegations levelled against her i.e. selling the child for money,
therefore, prays for dismissal of the petition.
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4. Analysis
Be that as it may, from the above discussion, it can be culled
out that the petitioner has already suffered sufficient incarceration i.e. 3
years and 9 days, the main accused has already been granted concession
of bail by this Court, antecedents of the petitioner are clean, meaning
thereby she is not a habitual offender, and as per the principle of the
criminal jurisprudence, no one should be considered guilty, till the guilt is
proved beyond reasonable doubt, whereas in the instant case, challan
stands presented on 06.04.2022 and 02.09.2022 charges stands framed on
06.08.2022 and 17.01.2023 and after framing of charge, out of 46
prosecution witnesses, only 16 PWs have been examined so far which is
sufficient for this Court to infer that the conclusion of trial is likely to take
considerable time and therefore, detaining the petitioner behind the bars
for an indefinite period would solve no purpose.
Reliance can be placed upon the judgment of the Apex Court
rendered in “Dataram versus State of Uttar Pradesh and another“,
2018(2) R.C.R. (Criminal) 131, wherein it has been held that the grant of
bail is a general rule and putting persons in jail or in prison or in
correction home is an exception. Relevant paras of the said judgment is
reproduced as under:-
“2. A fundamental postulate of criminal jurisprudence is the
presumption of innocence, meaning thereby that a person is
believed to be innocent until found guilty. However, there are
instances in our criminal law where a reverse onus has been
placed on an accused with regard to some specific offences but
that is another matter and does not detract from the fundamental
postulate in respect of other offences. Yet another important facet
of our criminal jurisprudence is that the grant of bail is the general
rule and putting a person in jail or in a prison or in a correction
home (whichever expression one may wish to use) is an exception.
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Unfortunately, some of these basic principles appear to have been
lost sight of with the result that more and more persons are being
incarcerated and for longer periods. This does not do any good to
our criminal jurisprudence or to our society.
3. There is no doubt that the grant or denial of bail is entirely the
discretion of the judge considering a case but even so, the exercise
of judicial discretion has been circumscribed by a large number of
decisions rendered by this Court and by every High Court in the
country. Yet, occasionally there is a necessity to introspect whether
denying bail to an accused person is the right thing to do on the
facts and in the circumstances of a case.
4. While so introspecting, among the factors that need to be
considered is whether the accused was arrested during
investigations when that person perhaps has the best opportunity
to tamper with the evidence or influence witnesses. If the
investigating officer does not find it necessary to arrest an accused
person during investigations, a strong case should be made out for
placing that person in judicial custody after a charge sheet is filed.
Similarly, it is important to ascertain whether the accused was
participating in the investigations to the satisfaction of the
investigating officer and was not absconding or not appearing
when required by the investigating officer. Surely, if an accused is
not hiding from the investigating officer or is hiding due to some
genuine and expressed fear of being victimised, it would be a
factor that a judge would need to consider in an appropriate case.
It is also necessary for the judge to consider whether the accused
is a first-time offender or has been accused of other offences and if
so, the nature of such offences and his or her general conduct. The
poverty or the deemed indigent status of an accused is also an
extremely important factor and even Parliament has taken notice
of it by incorporating an Explanation to section 436 of the Code of
Criminal Procedure, 1973. An equally soft approach to
incarceration has been taken by Parliament by inserting section
436A in the Code of Criminal Procedure, 1973.
5. To put it shortly, a humane attitude is required to be adopted by
a judge, while dealing with an application for remanding a suspect5 of 7
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or an accused person to police custody or judicial custody. There
are several reasons for this including maintaining the dignity of an
accused person, howsoever poor that person might be, the
requirements of Article 21 of the Constitution and the fact that
there is enormous overcrowding in prisons, leading to social and
other problems as noticed by this Court in In Re-Inhuman
Conditions in 1382 Prisons, 2017(4) RCR (Criminal) 416: 2017(5)
Recent Apex Judgments (R.A.J.) 408 : (2017) 10 SCC 658
6. The historical background of the provision for bail has been
elaborately and lucidly explained in a recent decision delivered in
Nikesh Tara chand Shah v. Union of India, 2017 (13) SCALE 609
going back to the days of the Magna Carta. In that decision,
reference was made to Gurbaksh Singh Sibbia v. State of Punjab,
(1980) 2 SCC 565 in which it is observed that it was held way back
in Nagendra v. King-Emperor, AIR 1924 Calcutta 476 that bail is
not to be withheld as a punishment. Reference was also made to
Emperor v. Hutchinson, AIR 1931 Allahabad 356 wherein it was
observed that grant of bail is the rule and refusal is the exception.
The provision for bail is therefore age-old and the liberal
interpretation to the provision for bail is almost a century old,
going back to colonial days.
7. However, we should not be understood to mean that bail should
be granted in every case. The grant or refusal of bail is entirely
within the discretion of the judge hearing the matter and though
that discretion is unfettered, it must be exercised judiciously and in
a humane manner and compassionately. Also, conditions for the
grant of bail ought not to be so strict as to be incapable of
compliance, thereby making the grant of bail illusory.”
Therefore, to elucidate further, this Court is conscious of the
fundamental principle of law that right to speedy trial is a part of
reasonable, fair and just procedure enshrined under Article 21 of the
Constitution of India. This constitutional right cannot be denied to the
accused as is the mandate of the Apex court in “Hussainara Khatoon
and ors (IV) v. Home Secretary, State of Bihar, Patna“, (1980) 1 SCC
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98. Besides this, reference can be drawn upon that pre-conviction period
of the under-trials should be as short as possible keeping in view the
nature of accusation and the severity of punishment in case of conviction
and the nature of supporting evidence, reasonable apprehension of
tampering with the witness or apprehension of threat to the complainant.
5. Decision:
In view of the aforesaid discussions made hereinabove, the
petitioner is directed to be released on regular bail on her furnishing bail
and surety bonds to the satisfaction of the trial Court/Duty Magistrate,
concerned.
However, it is made clear that anything stated hereinabove
shall not be construed as an expression of opinion on the merits of the
case.
The petition in the aforesaid terms stands allowed.
(SANDEEP MOUDGIL)
JUDGE
21.01.2025
anuradha
Whether speaking/reasoned Yes/No
Whether reportable Yes/No
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