IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No. 951 of 2011 Date of decision: 24.11.2011 Sidharth Sarpal …. Petitioner Vs. State of H.P. ….. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1No For the Petitioner : Mr. R.S.Cheema, Senior Advocate alongwith Mr. Satyen Vaidya, Mr. Ajay Kochhar, Mr. Harshdeep Singh Cheema and Mr. Vivek Sharma, Advocates. For the Respondent : Mr. Sandeep Sharma, Asstt. Solicitor General of India. Kuldip Singh, Judge (Oral) This is an application under Section 438 Cr.P.C. for releasing the petitioner on bail in FIR No.RC0962010S0002 registered at Police Station, CBI, Shimla on 26.5.2010 under Sections 306, 201 IPC. 2. It has been stated that FIR No. 66 dated 28.3.2010 was registered at Police Station, Shimla (W) under Sections 306, 201 and 34 IPC on the complaint of one Sampuran Singh Kalmotia. Later-on, on the directions of the High Court, the investigation of the said case was transferred to CBI and a case vide FIR No. RC0962010S0002 was registered by CBI, Shimla. It has been stated that the facts have been distorted and exaggerated by the complainant party to implicate the Whether the reporters of the local papers may be allowed to see the Judgment?yes 2 petitioner. The petitioner is not in any manner connected with the unfortunate death of Kumari Ritu Kalmotia. The complainant party has given a colour of abetment to the death of Kumari Ritu Kalmotia. 3. The petitioner has nothing to do with the commission of offence. The investigation in the case is complete. The CBI has also filed the challan. No recovery is to be made from the petitioner. The petitioner joined the investigation as and when required and all facts were disclosed during the investigation of the case. 4. The petitioner has not abetted the commission of suicide of Kumari Ritu Kalmotia nor did he instigate the deceased to commit suicide. In the present case it appears that the deceased suffered from some kind of mental condition and took drastic step to put an end to her life. In view of filing of the challan, the petitioner apprehends his arrest in the case. It has been stated that the petitioner is ready to furnish bail bonds in accordance with the directions of this Court. 5. The respondent has filed the reply. It has been stated that Sampuran Singh Kalmotia moved the High Court for CBI probe and in view of the High Court judgment dated 15.5.2010, FIR No. RC0962010S0002 was registered in CBI, Shimla branch for investigation. It has been stated that after investigation, charge sheet under Sections 306 and 201 IPC has been filed in the Court. The accused Sidharth Sarpal and deceased Ritu Kalmotia were known to each other and were in an intimate relationship with each other. Sidharth Sarpal continued to convince deceased and her parents that he would get married to deceased under all circumstances. 3 6. It has been stated that on 24.3.2010 engagement of Sidharth Sarpal was solemnized with Dr. Pooja Thami which was disclosed by Sidharth Sarpal on the intervening night of 27/28.3.2010 and deceased Ritu took the extreme step of ending her life as a result of mental cruelty meted out by accused Sidharth Sarpal. This Act of betrayal on the part of Sidharth Sarpal left no other option to deceased Ritu Kalmotia to end her life. Sidharth Sarpal instigated the deceased Ritu Kalmotia to commit suicide by informing her about his engagement with Dr. Pooja Thami. He knew that deceased Ritu Kalmotia will not be able to bear the shock of this news as their relation was in public knowledge.It has been stated that there is every likelihood that petitioner will tamper with the prosecution evidence and also may flee from the trial. Prayer has been made for rejection of the bail application. 7. I have heard Mr. R.S.Cheema, Senior Advocate on behalf of the petitioner and Mr. Sandeep Sharma, Assistant Solicitor General of India for respondent and have also gone through the record. The learned Assistant Solicitor General of India has submitted that the challan has been filed in the Court below, therefore, the petitioner should approach the court below for bail. He has not denied the jurisdiction of this Court to entertain the bail application of the petitioner at this stage. He has however, submitted that any order passed by this Court may influence the trial on merits. Mr. Cheema, on the contrary has submitted that the prosecution story is far fetch. The petitioner has not committed any offence, however, the minor details will be considered during trial. It has been submitted that petitioner continued to join the investigation and at no point of time, the respondent thought it proper to 4 arrest the petitioner or come forward with the plea that petitioner influenced the investigation or any prosecution witness. It has been submitted that petitioner is in service, there is no question of his flee from the trial, however, since the challan has been submitted in the Court, the petitioner apprehends his arrest in the case arising out of FIR No. RC0962010S0002. 8. Mr. Cheema has relied Ravindra Saxena vs. State of Rajasthan (2010) 1 SCC 684 wherein it has been held that anticipatory bail can be granted at any time so long as the applicant has not been arrested. When the application is moved to the High Court or the Court of Session, it must apply its own mind on the question and decide when the case is made out for granting such relief. The Supreme Court has also held that High Court ought not to have left the matter to the Magistrate only on the ground that the challan has now been presented. 9. Mr. Cheema has also relied S.S.Chheena vs. Vijay Kumar Mahajan and another (2010) 12 SCC 190 wherein it has been held as follows:- “Abetment involves a mental process of instigating a person or intentionally aiding a person in doing of a thing. Without a positive act on the part of the accused to instigate or aid in committing suicide, conviction cannot be sustained. The intention of the legislature and the ratio of the cases decided by this Court is clear that in order to convict a person under section 306 IPC there has to be a clear mens rea to commit the offence. It also requires an active act or direct act which led the deceased to commit suicide seeing no option and that act must have been intended to push the deceased into such a position that he committed suicide.” 10. In the present case, the petitioner had been appearing before the investigating agency during investigation. The investigating 5 agency did not project the case that during investigation, the petitioner influenced the investigation or terrorise any prosecution witness. The petitioner is in service. In these circumstances, it is reasonable to infer that petitioner will not flee from trial. The apprehension of the investigating agency that there is likelihood of petitioner tampering the prosecution evidence and flee from trial is without any corroborative material on record. The submission of learned Assistant Solicitor General of India that any order passed by this Court will influence the court below on merits, is also without any foundation. The case on merits will be considered during trial. In the facts and circumstances of the case, the petitioner has made out a case for grant of bail under Section 438 Cr.P.C. 11. In view of the above, the petition is allowed. In the event of the arrest of the petitioner in FIR No.RC0962010S0002 registered at Police Station, CBI, Shimla on 26.5.2010 under Sections 306, 201 IPC, the petitioner be released on bail on his furnishing personal bond in the sum of ` 40,000/- with one surety of the like amount to the satisfaction of the Arresting Officer with the condition that the petitioner shall not terrorise or overawe any prosecution witness or directly/indirectly influence the prosecution evidence in any manner. 12. The observations made in this judgment are for disposal of bail petition only and the same shall not be construed as an expression of opinion on the merits of the case. Copy Dasti. November 24, 2011. ( Kuldip Singh), (GR) Judge.