Smt. Anita Ahluwalia vs State of Himachal Pradesh

Kuldip Singh, J.—This is a petition u/s 482 Cr.P.C. read with Article 227 of the Constitution of India for quashing order dated 30.9.2009 passed by learned Addl. Sessions Judge, Solan in Bail Application No. 108-S/22 of 2009 releasing the respondent No. 3 on bail u/s 439 Cr.P.C. in FIR No. 104/2009 dated 21.6.2009, Police Station, Baddi, District Solan. It has been stated that Tanu daughter of petitioner was married to respondent No. 3 on 5.9.2007. On 20.6.2009 the respondent No. 3 alongwith his associates committed the murder of the daughter of petitioner. The police of Police Station, Baddi in connivance with accused had registered an FIR No. 104/2009 on 21.6.2009 u/s 306 IPC. The accused managed the doctor who conducted the postmortem and gave the cause of death "Asphyxia due to ante-mortem hanging" The accused was arrested on 21.6.2009. The investigation was transferred to CIA vide order dated 30.7.2009 of this Court in CWP No. 2408/09. However the investigation was not conducted properly.

The police filed report u/s 173 Cr.P.C. in the Court of learned Judicial Magistrate Ist Class, Nalagarh on 19.9.2009. The respondent No. 3 filed Bail Application No,.68-S/22 of 2009 which was dismissed by learned Addl. Sessions Judge, Solan camp at Nalagarh on 8.9.2009. The respondent No. 3 filed another bail application No. 108-S/22 of 2009 which was allowed by learned Addl. Sessions Judge, Solan on 30.9.2009. At the time of hearing/arguments in Bail Application No. 108-S-22 of 2009 on 29.9.2009 there was no material before learned Addl. Sessions Judge. The report u/s 173 Cr.P.C. was neither called by learned Addl. Sessions Judge nor it was sent to learned Addl. Sessions Judge at the time of hearing/arguments and considering bail application on 29.9.2009.

The High Court in CWP No. 4123/2010 on 7.10.2010 quashed, set aside the challan presented by the police before learned Judicial Magistrate Ist Class, Nalagarh in FIR No. 104/2009. The investigation of FIR No. 104/2009 was handed over to CBI with the direction that the final report u/s 173(2) Cr.P.C. be filed before the Court of competent jurisdiction. The order dated 30.9.2009 for granting bail to respondent No. 3 has been assailed mainly on the ground that there was no material before learned Addl. Sessions Judge except the bail application of the respondent No. 3 when bail was granted to respondent No. 3. It has been submitted that police did not investigate the case fairly and helped respondent No. 3. The case of murder has been wrongly shown to be a case u/s 306 IPC. The prayer has been made for setting aside, quashing order dated 30.9.2009.

Heard and perused the record. The learned counsel for the petitioner has submitted that except bail application of respondent No. 3 there was no material before learned Addl. Sessions Judge when the Bail Application No. 108-S/22 of 2009 was heard on 29.9.2009. It has been submitted that report u/s 173 Cr.P.C. submitted by the police before learned Judicial Magistrate on 19.9.2009 was not called by learned Addl. Sessions Judge while considering the bail application on 29.9.2009 nor the said report was otherwise produced before that Court at the time of hearing of the bail application. It has been submitted that facts were reproduced by learned Addl. Sessions Judge in the order dated 30.9.2009 from the copy of previous Bail Application No. 68-S/22 of 2009. The learned counsel for the petitioner has referred information dated 23.11.2010 supplied to the petitioner by Civil Judge (Sr. Division)-cum-JMIC, Nalagarh that there was no movement of case file between 20.9.2009 to 30.9.2009 from the room of Ahlmad to any court at Nalagarh or Solan.

It has also been submitted that PIO, Prosecution Branch, Nalagarh in answer to the quarry of learned counsel for the petitioner "Whether police file of FIR No. 194/09, Police Station, Baddi was produced to be taken to the Court of learned Addl. Sessions Judge between 19.9.2009 to 1.10.2009", has stated that the case file put in the Court of learned Judicial Magistrate Ist Class, Nalagarh by Inspector Lal Singh CID, Shimla and the next date was fixed for 1.10.2009 and the same day the file was handed over to C.No.853, P.S. Baddi. The learned counsel for the petitioner has submitted that aforesaid information corroborates the stand of the petitioner that on 29.9.2009 Section 173 Cr.P.C. report in FIR No. 104/2009 was not before learned Addl. Sessions Judge.

The learned Assistant Solicitor General of India has submitted that respondent No. 2 has filed Section 173 Cr.P.C. report in CBI Court at Shimla on 26.12.2011 u/s 306 read with Section 498A, 120-B IPC. The learned counsel for the respondent No. 3 has submitted that Section 173 Cr.P.C. report was not required to be sent to the learned Addl. Sessions Judge at the time of consideration of bail application by the learned Addl. Sessions Judge. He has submitted that there is nothing on record to show that except bail application of respondent No. 3 no material was before learned Addl. Sessions Judge on 29.9.2009 when he considered the bail application of respondent No. 3. It has been submitted that information relied by learned counsel for the petitioner is of no help to the petitioner to the point in issue involved in the case. He has submitted that it is a practice in the Court to look into the police file at the time of consideration of bail application unless the correctness of such file is disputed. There is no allegation in the petition that police file was not before learned Addl. Sessions Judge when he considered the bail application on 29.9.2009.

I have considered the rival contentions made by the learned counsel for the parties. The order dated 30.9.2009 has been challenged only on the ground that there was no material before learned Addl. Sessions Judge on 29.9.2009 except the bail application of respondent No. 3 when the bail application was considered. No submission has been made on merits for granting bail vide order dated 30.9.2009. The impugned order is dated 30.9.2009 but present petition has been filed on 2.5.2011. The information relied by the learned counsel for the petitioner in support of his submissions is not of any help inasmuch as that information refers to the movement of Section 173 Cr.P.C. report filed by the police on 19.9.2009 in the Court of learned Judicial Magistrate Ist Class, Nalagarh. The said information does not say anything about the movement of police file or record relied by the prosecutor at the time of arguing the bail application.

In the petition there is no averment that police file was not perused or considered by the learned Addl. Sessions Judge at the time of consideration of bail application on 29.9.2009. The bail application is not to be disposed of only on the basis of reply or report submitted in answer to the bail application but bail application is to be decided on the basis of record of investigation and such record can be police file if not disputed by other side.

The petition is supported by the affidavit of petitioner. There is no specific averment in the petition that on 29.9.2009 the petitioner was present in person in the Court of learned Addl. Sessions Judge when the Bail Application No. 108-S/220 of 2009 was considered. The impugned order has not been assailed on merits. The petitioner has levelled serious allegation that the bail application has been decided on 29/30.9.2009 without record but there is no unimpeachable material on record in support of this allegation. It is not believable that in normal circumstances an officer of the rank of Addl. Sessions Judge would decide the bail application in absence of record which is required for deciding the bail application. The petitioner in support of her allegation has not filed affidavit of any person who was actually present in the Court on 29/30.9.2009 that bail application has been decided by learned Addl. Sessions Judge in absence of any material other then the bail application of the respondent No. 3. There is no merit in the petition.

No other point was urged. In view of above discussion, the petition fails and is accordingly dismissed. All the pending applications also disposed of.