Himachal Pradesh High Court: Vivek Singh Thakur, J., granted regular bail on grounds that she is a mother of an infant child dependent upon her breasts feeding.

The facts of the case are such that the victim left home for school and did not return. On her father contacting school authorities got to know that school was not open that day. He went to register a complaint at the police station under Section 363 Penal Code, 1860 i.e. IPC and investigation started. On investigation, it was found that her phone was being used in various locations and two numbers were contacted most frequently. The last location of the victim was Panipat after which the phone was switched off. The petitioner is the sister of the main accused Nazim who is charged under Sections 366A, 370(4), 506 and 120B IPC. The victim was recovered from the petitioner and after victim’s statement was recorded, the petitioner was brought to police station for interrogation and was arrested later. The Petitioner has approached this Court under Section 439 Criminal Procedure Code (i.e. Cr.P.C.), seeking regular bail.

Counsel for the petitioners Mr Rajesh Kumar Parmar submitted that petitioner is a woman having her family and a permanent home in Village Dhakia, District Amroha, U.P., and there is no possibility of her fleeing from justice.

Counsel for the State Mr Raju Ram Rahi and Mr Nasib Singh submitted that that co-accused Ibad, who is husband of petitioner is not submitting himself to the Investigating Agency for interrogation and petitioner was actively playing role for hiding a minor girl (victim) and had been resisting handing over the girl to the police.

The Court observed that Section 437 CrPC deals with situation when accused is produced before the Magistrate and Section 439 CrPC devolves special power on the High Court and/or Court of Sessions regarding the bail and both Sections deal with different situations in different Courts, but it is also settled position that provisions contained in Sections 437 and 438 CrPC can also be taken into consideration at the time of considering bail under Section 439 CrPC. In fact, Section 437 CrPC refrains the Court, other than the High Court or Court of Sessions, from releasing a person, accused or suspect of commission of any non-bailable offence, who is arrested or detained for without warrant, or appears, or is produced before such Court and there appears reasonable ground for believing that he is guilty of an offence punishable with death, or imprisonment for life. However, an exception has been carved out enabling such Court to release such a person on bail, in case, such person is under the age of sixteen years, or is a woman, or is sick, or infirm, with the further provision that no such person shall be released without giving an opportunity of hearing to the Public Prosecutor.

The Court thus held “Considering entire facts and circumstances brought before me with respect to role of petitioner coupled with the fact that she is a mother of an infant child dependent upon her breasts feeding, I am of the opinion that at this stage, petitioner is entitled to be enlarged on bail”.

In view of the above, petition was dismissed.[Nasrin v. State of Himachal Pradesh, 2021 SCC OnLine HP 657, decided on 09-04-2021]

Arunima Bose, Editorial Assistant has reported this brief.

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