Rajwati And Others vs State Of H.P

Jyotsna Rewal Dua, J

A mother and her daughter have filed these two separate bail petitions under Section 438 of the Code of Criminal Procedure. Both of them are

accused in FIR No.08/21 dated 15.01.2021, registered under Section 380 and 34 of the Indian Penal Code, at Police Station Paonta Sahib, District

Sirmaur, H.P.

Interim protections were granted to the petitioners vide order dated 11.06.2021, subject to the conditions mentioned therein.

Heard learned counsel for the parties & gone through the status report. The case as set up by the prosecution is that one Smt. Sonia filed a

complaint with the police on 15.01.2021. The complaint was in respect of theft, which was allegedly committed by the accused persons in the house of

the complainant on 05.11.2020. It was alleged that Laxmi (petitioner in Cr.MP(M) No.1038/2021) & her mother Rajwati (petitioner in Cr.MP(M)

No.1037/2021) used to work as domestic helpers in complainant’s home. On 05.11.2020, Rajwati engaged the complainant in small talks. Taking

advantage, her daughter Laxmi stole certain jewellery articles from the complainant’s home viz. one gold Chain, one gold ring and a pair of tops.

The complainant further stated that she noticed the theft in the evening of 05.11.2020 itself. Complainant suspected the petitioners to be behind this

theft and therefore, summoned them to her house. On 06.11.2020, both the petitioners came to the complainant’s home & denied stealing any

jewellery articles. A complaint with the above allegations was lodged by Smt. Sonia on 15.01.2021. On the basis of this complaint, FIR was registered.

The articles were noticed missing from her home by the complainant on 05.11.2020. As per the complaint, the complainant on 05.11.2020, had

suspected the petitioners to be behind the theft. According to the complaint, the petitioners on 06.11.2020 had denied stealing jewellery from her home.

Yet, the complainant waited till 15.01.2021 for lodging the complaint. No reasons for the delay has forth come.

Learned counsel for the petitioner(s) submitted that four months’ wages had not been paid by the complainant to the petitioners. To evade the

payment, the instant FIR was got registered by the complainant against the petitioners.

Learned Additional Advocate General, while opposing the bail plea of the petitioners submitted that in case the Court is inclined to grant bail to them,

then the same be made subject to stringent conditions, including directing the petitioners to continue to cooperate and join the investigation as and when

directed by the investigating agency and not to threaten or intimidate the complainant.

The maximum sentence which can be imposed under Section 380 of the Indian Penal Code is seven years. Therefore, directions issued by the

Hon’ble Apex Court (2014) 8 SCC 273, titled Arnesh Kumar Vs. State of Bihar and another also come into play, which are extracted as under:Â​

“11. Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not

authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:

11.1 All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498ÂA of the IPC is

registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C;

11.2 All police officers be provided with a check list containing specified subÂ​ clauses under Section 41(1)(b)(ii);

11.3 The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while

forwarding/producing the accused before the Magistrate for further detention;

11.4 The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid

and only after recording its satisfaction, the Magistrate will authorise detention;

11.5 The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with

a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

11.6 Notice of appearance in terms of Section 41A of Cr.PC be served on the accused within two weeks from the date of institution of the

case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

11.7 Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action,

they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

11.8 Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental

action by the appropriate High Court.

We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498ÂA of the I.P.C. or Section 4 of the

Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less

than seven years or which may extend to seven years; whether with or without fine.â€​

No criminal history of the petitioners has been indicated in the status report. As per the status report, the petitioners have joined the investigation and

are cooperating with the Investigating Agency. The interim protection was granted to the petitioner(s) on 11.06.2021. There is no allegation regarding

their nonÂcooperation with the investigating agency or that they have intimidated the witnesses/complainant or tampered with the prosecution

evidence, while on bail. Petitioners are residents of Ward No.1, Badripur, Tehsil Paonta Sahib District Sirmaur H.P., therefore, their presence can be

secured during the trial.

Against above backdrop, no fruitful purpose will be served by sending the petitioners to judicial custody. Accordingly, these petitions are allowed and

the interim orders passed in all the aforesaid petitions on 11.06.2021 are made absolute subject to following conditions:Â​

(i) Petitioners are directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law. They shall

fully cooperate the Investigating Officer and will appear before him in the concerned police station as and when called in accordance with law;

However they shall not be called in the police station before 9.00 A.M. and after 5.00 P.M;

(ii). Petitioners shall not temper with the evidence or hamper the investigation in any manner whatsoever;

(iii). Petitioners will not leave India without prior permission of the Court;

(iv). Petitioners 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 them from disclosing such facts to the Court or any Police Officer;

(v). In case of launching of the prosecution, petitioners shall attend the trial on every hearing, unless exempted in accordance with law;

(vi). Petitioners shall inform the Station House Officer of the concerned police station about their place of residence during bail and trial. Any change

in the same shall also be communicated within two weeks thereafter. Petitioners shall furnish detail of their Aadhar Cards, Telephone Numbers, EÂ‐

mail, PAN Cards, Bank Account Numbers, if any;&

In case of violation of any of the terms & conditions of the bail, respondentÂState shall be at liberty to move appropriate application for cancellation of

the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an

opinion on the merits of the matter. Learned Trial Court shall decide the matter without being influenced by any of the observations made

hereinabove.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.

Copy dasti.