{"id":147670,"date":"1997-12-11T00:00:00","date_gmt":"1997-12-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shalini-rawat-vs-the-state-on-11-december-1997"},"modified":"2018-04-14T20:09:15","modified_gmt":"2018-04-14T14:39:15","slug":"shalini-rawat-vs-the-state-on-11-december-1997","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shalini-rawat-vs-the-state-on-11-december-1997","title":{"rendered":"Shalini Rawat vs The State on 11 December, 1997"},"content":{"rendered":"
Delhi High Court<\/div>\n
Shalini Rawat vs The State on 11 December, 1997<\/div>\n
Equivalent citations: 1998 IAD Delhi 69, 1998 CriLJ 1815, 1998 (3) Crimes 30, 71 (1998) DLT 19, 1998 (44) DRJ 81<\/div>\n
Author: J Singh<\/div>\n
Bench: J Singh<\/div>\n<\/p>\n
<\/pre>\n
ORDER<\/p>\n
Jaspal Singh, J.<\/p>\n
1.      In  Ajit Kumar v. State (1997 IV AD (Delhi) 469) while  accepting  the
\nappeal  against  the  judgment  of conviction  and  order  of  sentence,  I
\nwrote:.ls1 <\/p>\n
     “The very first month of the year 1993 saw the appellant convict-
\n     ed  and sentenced under sections 366 and 376 of the Indian  penal
\n     Code. Though no time was lost by him in filing the appeal, we let
\n     years slip by. The long and dreary wait within the high walls and
\n     iron  gates of the prison, in the meanwhile, must have  made  his
\n     life grow insipid and lose its relish. Was it not Oscar Wilde who
\n     said in The Ballad of Reading Gaol:\n<\/p>\n
        I know not whether laws be right, <\/p>\n
        Or whether laws be wrong;\n<\/p>\n
        All that we know who lie in gaol <\/p>\n
        Is that each day is like a year,  <\/p>\n
        A year whose days are long.\n<\/p>\n
     And  what  if I now acquit? And if I do so, and that  is  what  I
\n     propose  to  do,  what about his  withered  years  and  shattered
\n     dreams?”\n<\/p>\n
2.   Mr.V.P.Chaudhary,  Senior Advocate while arguing on the bail  applica-
\ntion  of Shalini Rawat read out to me the passage quoted above and  thereby
\nmade me relive the overwhelming feeling of contrition which had besieged me
\nwhile  acquitting Ajit Kumar. What if Shalini Rawat too is not enlarged  on
\nbail and is acquitted years later? Asked Mr.Chaudhay. But then this was not
\nthe  only contention. Other points too were raised in support of  the  plea
\nfor bail. I shall delineate the same a little later and of course in greater
\ndetail but first let us have a peep at the canvas brought out by the prosecution.\n<\/p>\n
3.   At  the cent restage is Harsh Gupta, a second year student  of  Bhagat
\nSingh college and the son of a businessman. On September 16, 1995 in  broad
\nday-light  he  was  abducted by two persons who were later  joined  by  yet
\nanother and whisked away to a distant locality and kept confined there in a
\nhouse for days and days together. In the meanwhile the persons keeping  the
\nvigil  had made enquiries about his father and had assured to  release  him
\nafter receipt of the ransom amount. On October 5, 1995 Kamlesh, a lady  who
\nused  to cook food for him and wash his clothes. told Harsh Gupta that  she
\nwould talk about his release with “Shalini Mami”. The same evening  Kamlesh
\naccompanied by Uday Pratap and Shalini Rawat entered his room, where Shali-
\nni  while stating that the police might have arrested “the  other  persons”
\nordered his release. The same evening he was a free man.\n<\/p>\n
4.   Is it all? Surely not. As per the prosecution, there was a demand  for
\nransom from the father of Harsh Gupta who made the payment in cash but only
\nafter getting in touch with the police. One thing more. The currency notes,
\nbefore being handed over as ransom money, had been stealthily signed by the
\nfather of Harsh Gupta and the Investigating Officer. This ingenuity was  to
\nreap  rich  dividends  later. To cut short, a part of the  rupees  15  lacs
\nransom  money bearing those signatures was later recovered  allegedly  from
\nthe petitioner Shalini Rawat and her father Jagdish Singh Rawat who made  a
\nstatement  under  section 161 of the Code of Criminal  Procedure  that  the
\namount so recovered from him had been handed over to him by none other  but
\nhis own daughter Shalini Rawat and her husband. It may also be noticed that
\nShalini  Rawat was arrested on October 8, 1995 while she was  with  Kamlesh
\nand that about five days later she refused to participate in test identifi-
\ncation parade. And, before I conclude this narrative I may as well  mention
\nthat after the framing of charges the learned Additional Sessions Judge  is
\nproceeding  ahead  with the trial. Three witnesses  including  Harsh  Gupta
\nstand  examined and three dates in February 1998 (2nd, 3rd and  4th)  stand
\nfixed for proceeding ahead with the trial.\n<\/p>\n
5.   I think I need to mention one more fact, for it is material, before  I
\nrevert  back to Mr. V. P. Chaudhary and his arguments. And it is  that  the
\npresent is not the first bail application in this court. In fact it is  the
\nsecond.  The first was dismissed by a learned single judge on February  26,
\n1997. Mr.V.P.Chaudhary at that time too was the counsel. The order runs  as
\nunder:\n<\/p>\n
     “Crl.M.(M) No.298\/97 <\/p>\n
     Heard the learned counsel for the petitioner.\n<\/p><\/blockquote>\n
     Learned  counsel for the petitioner contends that the  petitioner
\n     is  an  innocent lady. She is an enrolled advocate. She  has  got
\n     absolutely nothing to do with the present incident. She has  been
\n     in custody since October 8, 1995. Thus the present case is a  fit
\n     case for bail.\n<\/p><\/blockquote>\n
     Learned  PP on the other hand has contended that  the  petitioner
\n     and her husband Dinesh Singh are behind the present incident.  It
\n     was  at the instance of the petitioner and her husband  that  Shri
\n     Harsh  Gupta  was kidnapped. A sum of Rs.65,000\/-  was  recovered
\n     from the petitioner.\n<\/p><\/blockquote>\n
     Then there is the statement of Shri Jagdish who has stated before
\n     the police that the petitioner and her husband came to his  house
\n     and gave to him a sum of Rs.,5,75,000\/- which he got deposited in
\n     different banks.\n<\/p><\/blockquote>\n
     Then  there  is  the statement of the person  kidnapped  who  has
\n     stated  that  Smt.Kamlesh  told him that she would  talk  to  the
\n     petitioner with regard to his release.\n<\/p><\/blockquote>\n
     Considering  the  above facts and circumstances I  do  not  think
\n     present case is a fit case for bail. Dismissed.”\n<\/p><\/blockquote>\n
6.   Mr.Chaudhary  says  that the earlier order is no bar  to  the  present
\napplication though Mr.Sawhney appearing for the State, without referring to
\nany authority in support, says it is. True, successive bail applications by
\nan  accused  are  not barred as there is nothing like a  principle  of  res
\njudicata  operating in the field but there must be a substantial change  in
\nthe  fact situation for the court to entertain a subsequent  bail  applica-
\ntion.  Where  there is no substantial change in fact  situation  thereafter
\nnecessitating  release  of accused on bail, order granting  bail  would  be
\nillegal  {See:  State of Maharashtra v. Buddhikota Subha Rao<\/a>  ].  As for me, I see no substantial change in fact situation  excepting
\nthis  that after the said order three witnesses including Harsh Gupta  have
\nbeen  examined  by the prosecution and unfortunately for  Mr.Chaudhary  the
\nvictim  supports the prosecution version and points accusing finger at  the
\npetitioner.  Though,  as  per Mr.Chaudhary, the  prosecution  suffers  from
\ncertain infirmities and though according to him the statement on oath given
\nby  Harsh Gupta is unworthy of reliance, this, to my mind, is no  stage  to
\ndissect the material and examine it microscopically. That would be for  the
\nlearned trial judge and that too at an appropriate stage.\n<\/p>\n
7.   Mr.Chaudhary  says  that  the petitioner is a lady and add  to  it  an
\nadvocate too. This was said by him earlier too but without success. In  any
\ncase,  the provision of bail to a woman is not mandatory when there is,  as
\nin  the  case in hand, ample material to prima facie connect her  with  the
\ncommission  of  an heinous offence. May be she is an Advocate. As  her  involvement  is prima facie established (charges having already  been  framed under  sections 364A\/411\/120-B), the mere fact that she belongs to what  we have  been regarding a noble profession is not sufficient to be weighed  in her favour.\n<\/p>\n
8.   Mr.Chaudhary seeks bail on yet another ground. He says that  remaining
\nconfined  in judicial custody, the petitioner would be handicapped  in  de-
\nfending  herself. Why should she feel so when she is being represented  and
\ndefended by a senior advocate who took not only all the time to present her
\ncase but showed all anxiety to know also whether his arguments were  registering  with the court or not (for this is what he said) without ever  complaining  of  any  handicap? The Madhya Bharat High  Court  said  in  State through  Public Prosecutor Indore v. Balwant Singh Onkar Singh AIR 1950  MB 43  that where the accused is represented by a counsel the court would  not be  justified in releasing the accused merely on the ground that  it  would facilitate  his defense. of course, this judgment was not referred  to.  The
\njudgment  which was referred to is Babu Singh v. State of U.P. . It came from the armoury of Mr.Chaudhary. It was an appeal before  the
\nSupreme  Court  and one of the grounds for grant of bail was that  all  the
\nappellants were the entire male members of a family and all of them were in
\njail.  As  noticed,  this was not the only ground.  It  was  an  additional
\nground. In the case in hand and as stated by Mr.Sawhney, the petitioner has
\nother  family  members to stand by and extend a helping hand  and  the  way
\nMr.Chaudhary  went  about arguing the matter those family members  must  be
\ncomplimented for having done a good job.\n<\/p>\n
9.   Mr.Chaudhary reminded me that bail and not jail is the basic rule. The
\ninspiration  for this obviously comes from State of Rajasthan  v.  Balchand<\/a>
\n. But then Mr.Chaudhary perhaps forgets, if I may  say  so
\nwith  respect, that the statement so vociferously proclaimed and  advocated
\nis  subject  to  certain very notable exceptions and Krishna  Iyer  J.  who
\npenned  that  statement  underlined the same in the same  breath.  Lest  we
\nforget or are led astray, let us listen to what his Lordship says and  that
\ntoo in clear and unambiguous terms: .ls1
\n      “The  basic  rule may perhaps be tersely put as bail,  not  jail,
\n     except  where there are circumstances suggestive of fleeing  from
\n     justice  or  creating other troubles in the  shape  of  repeating
\n     offences or intimidating witnesses and the like by the petitioner
\n     who seeks enlargement of bail from the court. We do not intend to
\n     be exhaustive but only illustrative.”\n<\/p>\n
     Can it be said still that bail and not jail is the basic rule with  no
\nexceptions  attached?  Let us neither mutilate nor distort.  In  Balchand’s
\ncase itself the court observed that the gravity of the offence and heinous-
\nness of the offence “must weigh”. I am mentioning it so that our vision  is
\nnot clouded. Neither today nor tomorrow.\n<\/p>\n
10.  At  this  stage what requires to be noticed would be  the  nature  and
\ncircumstances  of the offence, nature of evidence, circumstances which  are
\npeculiar  to the accused, reasonable apprehension of witnesses  being  tampered  with,  a reasonable possibility of the presence of  the  accused  at trial and larger interest of the public or the State.\n<\/p>\n
11.  The petitioner has been charged with and is facing trial for, offences
\nwhich  are  grave and heinous. Three prosecution  witnesses  including  the
\nvictim  already stand examined and the learned trial judge, with a view  to
\ndeal with the matter expeditiously, has very properly fixed three dates  in
\nthe near future for remaining evidence. The State, it appears is proceeding
\nahead with due diligence. Mr.Sawhney appearing for the State submitted that
\ngrant of bail at this juncture may jeopardise the prosecution as the  petitioner though attached to a noble profession, is hardly noble in deeds  and appears to be a desperate character. The fact that Harsh Gupta was abducted in  broad day light, and kept in confinement for ransom and the  fact  that the  petitioner  was a party to the entire sordid drama and the  fact  that part  of  ransom money was recovered from her and her father  stands  prima facie proved and all this surely lends credence to the apprehension  voiced by Mr.Sawhney.\n<\/p>\n
12.  Undoubtedly,  inability of the existing judicial machinery to  try  an
\naccused expeditiously is known. It is also true that right of speedy  trial
\nguaranteed  by Article 21 and section 309 of the Code needs to be  kept  in
\nmind.  To  that extent I find myself one with Mr.Chaudhary.  Surely  enough
\naccused  person’s  right of personal liberty is important but  let  us  not
\nforget that in case of a conflict between accused person’s right of person-
\nal liberty and interest of public justice and welfare objectives of  socie-
\nty,  the  former should be subordinated to the later (See:  Babu  Singh  v.
\nState of U.P. ) Mercifully, in this case, there has not been
\nany delay so far and surely, for the reasons already delineated, it is  not
\na case of avoidable incarceration.\n<\/p>\n
13.  Lastly,  the  question  posed firstly. What if Shalini  Rawat  is  not
\nenlarged now on bail and is acquitted later? And, in that case, what  about
\nher  withered  years and shattered dreams? The thought  had  tormented  the
\nSupreme  Court too in G.Narasimhulu v. Public Prosecutor A.P. (AIR<\/a> 1978  SC 430).  I was thus not the first. Nor, in fact, was the Supreme  Court.  The
\nquestion  is as old as the hills and has been bothering criminologists  and
\npenologists.  The  Supreme Court, in G.Narasimhulu was faced  with  a  case
\nwhere special leave petition stood admitted and where the final disposal of
\nthe petition would have, in all likelihood, consumed years before disposal.
\nIt held that in such a situation “the Court should ordinarily unless  there
\nare cogent grounds for acting otherwise release the accused on bail”.  Thus
\nemphasis  on likelihood of delay in disposal of special leave petition  and
\nits  becoming a persuasive ground for grant of bail, too is  qualified  by:
\n“unless  there are cogent grounds for acting otherwise”. In short  even  in
\nsuch cases bail is not an unqualified right. And, let us remember that what
\nwe  have  before us is a trial in progress and thus  a  situation  entirely
\ndifferent. To say that a distant dream of ultimate acquittal should prevail
\nand  entitle the accused to bail would nullify the law of bail with  regard
\nto  non-bailable offences. The argument even goes far beyond the demand  of
\nthe  Delhi  Bar Association put before the Law Commission  years  ago  that
\nsection 497(1) should be made more liberal by providing that if the offence
\nis not punishable with death, bail ought to be granted. The Law  Commission
\nin its 41st Report observed:.ls1
\n      “We  are  afraid  that this would be a  radical  and  undesirable
\n     change in law. Offences punishable with imprisonment for life are
\n     serious enough to justify the present position.”\n<\/p>\n
     Another  suggestion was to the effect that in section 497(1)  for  the
\nwords “he may be released on bail” the following words be substituted – “he
\nshall be released on bail unless the court for reasons recorded in  writing
\notherwise directs”. The Report observed:\n<\/p>\n
      “We  are unable to accept the suggestion either.  Its  acceptance
\n     would  practically amount to an abolition of distinction  between
\n     bailable and non-bailable offences”\n<\/p><\/blockquote>\n
     I  have no manner of doubt that the argument of Mr.Chaudhary,  if  ac-\n<\/p><\/blockquote>\n
cepted, too would completely wash away the distinction between bailable and
\nnon-bailable offence. We cannot allow it to happen.\n<\/p>\n
14.  Keeping  in  view the totality of the facts and circumstances  of  the
\ncase,  I  have absolutely no doubt that equipping the  petitioner  with  an
\norder  as sought by her, would be hazardous to the victim and dangerous  to
\nthe society in general. It may even impede the trial. Public interest would
\nthus  suffer  as a consequence. The petition is  thus  dismissed.  However,
\nnothing said in this order shall be read as an expression of opinion on the
\ncase.<\/p>\n","protected":false},"excerpt":{"rendered":"
Delhi High Court Shalini Rawat vs The State on 11 December, 1997 Equivalent citations: 1998 IAD Delhi 69, 1998 CriLJ 1815, 1998 (3) Crimes 30, 71 (1998) DLT 19, 1998 (44) DRJ 81 Author: J Singh Bench: J Singh ORDER Jaspal Singh, J. 1. In Ajit Kumar v. State (1997 IV AD (Delhi) 469) while […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[14,8],"tags":[],"class_list":["post-147670","post","type-post","status-publish","format-standard","hentry","category-delhi-high-court","category-high-court"],"yoast_head":"\nShalini Rawat vs The State on 11 December, 1997 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shalini-rawat-vs-the-state-on-11-december-1997\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shalini Rawat vs The State on 11 December, 1997 - 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