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Rajasthan High Court · body

2001 DIGILAW 423 (RAJ)

Har Sahay Meena v. U. O. I.

2001-03-15

R.R.YADAV

body2001
Honble YADAV, J.–The question relating to ``jail or bail during the pendency of trial, involved in the present two bail applications, with regard to custodial death alleged against accused-applicants, who are members of police force deserve serious consideration of this Court. The aforesaid question is to be answered with unstirred judicial mindset. Keeping in view the nature of accusation, the nature of the evidence collected by Investigating Officer in support of such accusation, the severity of the punishment which conviction may entail, the difficult task, which uniformed police force to perform in adverse circumstances to maintain law and order and safeguards provided to them while discharging their professional duties, without being influenced with print media, leading to large scale public agitation. (2). The present two bail applications under Section 439, Cr. P.C., arise out of FIR No. 4(s) 2000/SIC. IV/ND registered for offence under Section 302, IPC, but after investigation, charge- sheet has been filed in Court by Investigating Officer for offences punishable under Sections 304, 323, 325, 218 and 201, read with Section 34, IPC regarding which, Bail Application No. 634/2000 of accused applicant Har Sahay Meena, has been rejected by the learned Sessions Judge, Jaipur District, Jaipur, vide his order dt.29.9.2000, whereas, the first bail application of accused applicant Shanti Chand, was rejected by the learned Additional Sessions Judge No.2, Ajmer, on 3.10.2000, and his second bail application was also rejected on 12.12.2000. Without commenting upon the merits of the case, lest it may prejudice the trial, I propose to dispose of these two bail applications after weighing the pros and cons to the effect that our country and other civilised countries of the world have realised the necessity, to protect the human rights, in view of changing social realities and emerging trends in the nature of crime and violence by evolving and pressing into service the doctrine of zero tolerance. (3). Both these bail applications arise out of the same FIR, hence, it can be disposed of by a composite order. (4). For better and deeper understanding of the question, involved in these two bail applications, it is necessary to have a short resume of the facts, leading to unfortunate incident, which trangically occurred on the intervening night of 19th and 20.06.2000, in which, Dharmendra Meghvanshi, a student of MA Final Year, of Government College, Ajmer, lost his life. (5). (4). For better and deeper understanding of the question, involved in these two bail applications, it is necessary to have a short resume of the facts, leading to unfortunate incident, which trangically occurred on the intervening night of 19th and 20.06.2000, in which, Dharmendra Meghvanshi, a student of MA Final Year, of Government College, Ajmer, lost his life. (5). It is revealed from perusal of case-diary that Dharmendra Meghvanshi was the President of Government College, Ajmer. It is alleged that on 19.6.2000, on his scooter, Dharmendra Meghvanshi, along with Pappu Rolia and Ashok Chaudhary, had left for Ramganj. He was accompanied by his two other friends. They stopped before a liquor shop at Ramganj, and Dharmendra Meghvanshi purchased a bottled of liquor. He consumed liquor, along with his two friends, namely, Narendra and Pappu, at the crossing of Government College, Ajmer. All of them then left for Karwa Hotel, where, again, the three persons named above, consumed liquor. It is further revealed from perusal of case-diary that on 20.6.2000, at about 12.30 a.m., Dharmendra Meghvanshi, after consuming liquor with his friends at two places, named hereinabove, were going on his scooter RJ-01 2M 9867, which was driven by his friend, Ashok Chaudhary. They reached near Clock Tower, Station Road, Ajmer, for purchasing cigarettes from a tea-vendor, Manu Sindhi, who was selling tea/cigarettes on a `thela, where they met Sugreev Singh Meena, Constable and Pankaj Verma, Home Guard, in their uniform, who were detailed on night patrolling duty in their beat, to maintain law and order. When Dharmendra Meghvanshi, under influence of liquor, and his friend, Ashok Chaudhary saw the police constable and the Home Guard in their uniform, Dharmendra Meghvanshi started staring at their uniform, right from top to bottom. When an objection was raised by Sugreev Singh Meena, Constable, there was a serious altercation between them and Constable gave beating to Dharmendra Meghvanshi with his `danda which he was carrying on his night patrolling duty. The information relating to the altercation and `marpeet between Dharmendra Meghvanshi and his friend, Ashok Chaudhary on one side, and Sugreev Singh Meena, constable and Pankaj Verma, Home Guard, on the other, reached Police Station, Clock Tower, Ajmer. Thereupon, it is alleged that some other police constables, reached to the place of occurrence in a jeep No. RJ-01 C 7811. Dharmendra Meghvanshi and Ashok Chaudhary resisted their arrest resulting again in `marpeet with them. Thereupon, it is alleged that some other police constables, reached to the place of occurrence in a jeep No. RJ-01 C 7811. Dharmendra Meghvanshi and Ashok Chaudhary resisted their arrest resulting again in `marpeet with them. (6). It is revealed from perusal of the case-diary that the Medical Board, which conducted the post-mortem at Ajmer, categorically stated that the brain was absolutely healthy. After conducting the post-mortem, the said Medical Board could not arrive at any conclusive finding regarding the cause of death and so, they chose to keep it reser- ve till the receipt of Chemical Hystopathological Examination of viscera. After the rece- ipt of the said reports, nothing conclusive qua cause of death could be ascertained. (7). It is further revealed from the perusal of the case-diary that the Investigating Officer could not come to terms with the conclusions, drawn by the Medical Board of Ajmer, since the Medical Board on one hand opined that the deceased died due to Cerebral Concussion and the brain was found healthy. The Investigating Officer, finding himself to be in a fiasco, sought opinion of Medico-Legal Expert Committee, comprising of six eminent doctors of All India Institute of Medical Sciences. The said Medical Board, after thorough examination of all the documents as also after viewing the videography of post-mortem, conducted at Ajmer, came to the conclusion that the deceased died as a result of Myocardial infraction (heart-attack), due to Coronary Atherosclerosis and ante-mortem thrombosis of left anterior descending branch of left coronary artery. The onset of Myocardial Infarction was at least four hours prior to death. The injuries mentioned in post-mortem report are not sufficient to cause death in the ordinary course of nature, individually or collectively. According to the report of Medical Jurist of AIIMS, injuries mentioned in the post-mortem report of Dharmendra Meghvanshi and Medico-Legal Report of Ashok Chaudhary, could be produced by blunt force, including road traffic accident. (8). The questionnaire put by the CBI, to the Medical Board of AIIMS and the answers given by the Board, are as under:- ``Q.1 Whether the medical reports and 2 Video Cassettes of the post-mortem indicate the nature of injury as shown in the post-mortem report were caused due to fall from Scooter? Q.2 The injury report of Ashok Chaudhary dated 20.6.2000 may be examined and opined whether the injuries were due to scooter accident or not? Q.2 The injury report of Ashok Chaudhary dated 20.6.2000 may be examined and opined whether the injuries were due to scooter accident or not? Answer 1 & 2–The injuries mentioned in the post-mortem report of Dharmendra Meghwanshi and as seen in the video cassettes are consistent. The injuries mentioned in the post- mortem report of Dharmendra Meghwanshi and Medico Legal Report of Ashok Chaudhary could be produced by blunt force including road traffic accident. Q.3. .... .... Ans. .... .... Q.4 .... .... Ans. .... .... Q.5 Whether the two video cassettes show any other injury both external and internal on the person of Dharmendra Meghwanshi other than those shown in the post-mortem report. If so, the causes thereof. Ans. The injuries mentioned in the post-mortem Report are consistent with that of two video cassettes. Answers given by Medical Board to the questions, asked in letter dated 30.8.2000 by Investigating Officer are also reproduced hereinbelow for ready reference. Q.1 Kindly express your opinion regarding the role of stress, excitement and sustaining injuries in causation of death even if it is the cause other than the injuries. Ans. If someone is suffering from Myocardial Infarction (heart attack) and undergoes stress, excitement or sustains injuries due to violence, it may deteriorate his condition. Q.2. As per report of Chemical Analysis No. FSL/Toxi/Division/819/2000 shows presence of Ethy1 Alcohol in concentration 115 Mg. per 100 Ml. so the role of Alcohol in this case may be explained. Ans. If the person is under the influence of alcohol and is in stage of euphoria which may occur at the level of 115 Mg. per 100 Ml., such a person may ignore the symptoms of Myocardial Infarction. (9). Looking into the serious allegation and two versions putforth before me, one by learned counsel for accused-applicants and other by the learned counsel appearing on behalf of C.B.I., I thought it proper to direct the learned counsel for the parties, to submit before this Court whether the accused applicants have been charged by the learned trial court, under Section 304-I, IPC or under Section 304-II, IPC, with a direction to the Investigating Officer, to remain present in Court, on the next date of hearing, to apprise the Court, within how much time, it would be possible for him, to examine all the 75 witnesses, cited in challan-papers. (10). (10). I have perused the order dated 8.2.2001, passed by the learned trial Judge, framing charge against the accused applicants, under Sections 304, 323, 325, 218, 201, read with Section 34, IPC. A close scrutiny of the order dated 8.2.2001, revealed that the learned trial Judge, after hearing learned counsel for both the sides, has declined to drop the charge under Section 304, IPC, against the accused applicants and other co-accused, after taking into account, the scope of Sections 227 and 228, Cr. P.C. It is further revealed from perusal of order dated 8.2.2001 that the learned trial Judge refused to transfer the case to the court of Chief Judicial Magistrate, Ajmer for trial due to inherent limitations contemplated under the aforesaid sections. (11). It is well to remember that by legal fiction, every individual is supposed to know the law. Under Article 21 of the Constitution, which is supreme norm of the nation, no person can be deprived of his life or personal liberty, except according to the procedure, established by law. Similarly, under Article 11 of Universal Declaration of Human Rights, 1948, everyone, charged with a penal offence, has the right to be presumed innocent until proved guilty according to law, in a public trial, at which, he has had all the guarantees necessary for his defence. Article 5 of Universal Declaration of Human Rights, 1948, envisages that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Our country is signatory to the Universal Declaration of Human Rights, 1948, and courts of law, while deciding a question relating to civil liberties of a person, has not only to look into Article 21 of the Constitution, but they have to pay their attention to Articles 11 and 5 of Universal Declaration of Human Rights, 1948, to which, our country is a signatory. (12). Now, coming to the statutory provisions, we are required to examine the relevant provisions of Sections 41, 42, 46, 149 and 151, Cr. P.C., along with Sections 332 and 353, IPC. Section 41 Cr. P.C. authorises a police officer to arrest any person without warrant. Section 41(e) of Cr. P.C. provides that if anyone obstructs a police officer while executing his duty or who has escaped or attempts to escape from lawful custody, he can be arrested without an order from a Magistrate and without a warrant. Section 41 Cr. P.C. authorises a police officer to arrest any person without warrant. Section 41(e) of Cr. P.C. provides that if anyone obstructs a police officer while executing his duty or who has escaped or attempts to escape from lawful custody, he can be arrested without an order from a Magistrate and without a warrant. Anyone can be arrested under Section 42 Cr. P.C., who refused to give his name and address. Section 46 Cr. P.C. provides how arrest is to be made. In making an arrest, the police officer can actually touch or confine the body of the person to be arrested unless there be a submission to the custody by word or action. Sub-section (2) of the aforesaid section provides that if such person forcibly resists the endeavour to arrest him or attempt to evade the arrest such police officer can use all means necessary to effect arrest. Section 149 Cr. P.C. provides that every police officer may interpose for the purpose of preventing to a cognizable offence by taking all necessary steps to the best of his ability. Under Section 151 Cr.P.C., a police officer is authorised to arrest a person after knowing his design to commit any cognizable offence. Indisputably, voluntarily causing hurt to deter a public servant from his duty and assault or criminal force to deter a public servant from discharging his duty are cognizable offences within the meaning of Section 332 and 353 of I.P.C. respectively. (13). In the backdrop of the aforesaid legal discussion, two versions of the same incident, one putforth by the learned counsel appearing for accused-applicants with vehemence and other version putforth by learned counsel appearing for prosecution agency, alleging cruelty and inhuman torture to Dharmendra Meghvanshi and Ashok Chaudhary with equal vehemence, I propose to avoid to make a detail examination of evidence and elaborate documentation of the merit of the case while passing the order on these two bail applications. I am of the view that an exercise by this Court at the time of passing orders on these two bail applications would be prematured and may cause prejudice to the two versions of the same incident putforth before me by both the sides. No party should have an impression that his version has been prejudiced before its veracity is tested in accordance with law after full-fledged trial. No party should have an impression that his version has been prejudiced before its veracity is tested in accordance with law after full-fledged trial. Without exploring of the merit of the two versions of the same incident putforth before me in the present case by the learned counsel for the parties from the perusal of case diary, challan papers and medical reports, I am, prima facie, satisfied that the accused-applicants are entitled to be enlarged on bail. From perusal of medical reports and looking to the number and nature of ante-mortem injuries received by Dharmendra Meghvanshi and also after looking to the Medico-Legal report of Ashok Chaudhary disclosing the number and nature of the injuries, I am, prima facie, satisfied that no element of cruelty or inhuman torture is inferable from these medical reports. (14). The learned counsel for the accused applicants are emphasising on the medical reports on record, whereas, the learned counsel, appearing on behalf of the investigating agency, for proving cruelty and inhuman torture, is placing reliance on the statements of the witnesses, recorded by the Investigating Officer, under sub-section (3) of Section 161, Cr. P.C. I do not want to make critical comments on the medical reports, upon which, the learned counsel for the accused applicants, is relying upon, because, it may have telling effect on the merit of the case at trial. The medical reports, brought to my notice by the learned counsel for the accused-applicants are not sufficient on its face-value to absolve the accused-applicants from the accusations, made against them under Section 304 I.P.C. in isolation, but the testimonial values of these medical reports are to be evaluated by the trial court in the light of other evidence, produced in the trial. The intricate question relating to intention of committing murder and about the prior knowledge of heart disease of Dharmendra Meghvanshi to the accused- applicants, as envisaged under Section 304-I and 304-II, IPC, cannot be gone into at the stage of passing orders on these two bail applications. This question is left open to be decided at the time of trial by learned trial Judge, in the light of other evidence, produced by the parties of both sides, but from perusal of these medical reports, submitted by the Medical Experts, based on scientific data, I am prima facie inclined to enlarge the accused-applicants on bail during the pendency of trial. (15). (15). As regards the argument of the learned counsel, appearing on behalf of the prosecution agency, placing reliance on the statements of the witnesses, recorded by the Investigating Officer, under Sub-section (3) of Section 161 Cr. P.C., suffice it to say in this regard that I have my own reservations for holding at this stage that the statements, recorded under sub- section (3) of Section 161, Cr. P.C., are covered by the sweep of inhibitions, contained in Section 162, Cr. P.C., which cannot be allowed to be circumvented by the learned counsel appearing on behalf of the prosecution agency, at the stage of granting bail. The statements, recorded by the Investigating Officer, under sub-section (3) of Section 161, Cr.P.C., are not comparable with the depositions of the witnesses recorded before the court, after subjecting them to cross-examination, as contemplated under Section 145 of the Indian Evidence Act. (16). The bottom-line argument of the learned counsel for the prosecution agency is that since the two bail applications of two co-accused persons, moved before a co-ordinate Bench of this Court under Section 439 Cr. P.C., arising out of the same FIR, have been rejected, therefore, these two bail applications of the present two accused-applicants, moved under Section 439, Cr. P.C., are also liable to be rejected on the same grounds. The aforesaid argument of the learned counsel for prosecution agency is not palatable to me because as in civil cases granting or refusing ad interim stay orders by one co-ordinate Bench of the same Court, are not treated as precedents for another co-ordinate Bench of the same Court similarly, granting or refusal of bail by one co-ordinate Bench of the same Court is never treated to be a precedent for another co-ordinate Bench of the same Court. Each bail application moved under Section 439 Cr. P.C. is to be decided on the basis of probability or improbability of involvement of each accused person, role assigned to him in committing offence (s) and, severity of the punishment which conviction may entail against him. A note of caution is added here that it is not humanly and practically possible for a co- ordinate Bench to lay down any precise, clearly defined and sufficiently channelised in flexible guidelines either to grant or refuse a bail application of an accused person who has not moved a bail application before it. A note of caution is added here that it is not humanly and practically possible for a co- ordinate Bench to lay down any precise, clearly defined and sufficiently channelised in flexible guidelines either to grant or refuse a bail application of an accused person who has not moved a bail application before it. Even after rejection of one bail application under Section 439 Cr. P.C., an accused person is entitled to move successive bail application on fresh ground provided it was not available to him on the earlier occasion when his bail application was rejected. It is evident from perusal of record that the grounds, which are brought before me in these two bail applications, were not brought to the notice of the learned Single Judge, while deciding two bail applications of other two co-accused persons, therefore, it is not correct to say that the bail applications of the other two co-accused persons have already been rejected by one co-ordinate Bench of this Court on the same ground on which present co-accused applicants are being enlarged on bail. In criminal cases, the principle of ``stare decisis is applicable, within the meaning of Section 40 of the Indian Evidence Act which prohibits to hold fresh trial. Section 40 of the said Act provides that the existence of any judgment, order, or decree, which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is whether such court ought to take cognizance of such suit, or to hold such trial. I am of the view that Section 40 of the Indian Evidence Act, prohibits fresh trial, whereas, granting or refusing bail, do not fall within the purview of ``trial. (17). I am fortified in enlarging the accused-applicants on bail during the pendency of trial from the decisions rendered by Supreme Court in case of Gudikanti Narasimhulu and others vs. Public Prosecutor, High Court of Andhra Pradesh (1), in case of Niranjan Singh and another vs. Prabhakar Rajaram Kharote and others (2), and in case of Bhagirath Singh Jadeja vs. State of Gujarat (3), propounding the principles of grant of bail to the effect that the discretionary power to grant bail is not to be exercised as punishment before such punishment is imposed to an accused after full-fledged trial by a Court of law giving him an opportunity to defend. Ordinarily, the modern trend of Courts of law is in favour of granting bail taking into account the concept of civil liberty as sacrosanct. (18). It is to imbibed that accused-applicant Har Sahay Meena is in judicial custody since 21.6.2000, whereas, the accused- applicant, Shanti Chand is in judicial custody since 30.9.2000. The prosecution agency has to examine 75 witnesses in support of accusations made against accused-applicants and other co-accused which will take considerable time. Looking into the totality of the facts and circumstances of this case, I am persuaded to enlarge the accused-applicants on bail during the pendency of trial with a direction to the learned trial Judge to conclude the trial expeditiously. (19). Upshot of the aforesaid discussion is that the accused applicants are entitled to be enlarged on bail. It is, therefore, ordered that the accused applicants, Har Sahay Meena, son of Ramji Lal Meena; and Shanti Chand, son of Ram Kishan, be released on bail, provided, each of them furnishes a personal bond of Rs. 20,000/-, with two sureties of like amount, to the satisfaction of the learned trial court, for their appearance before the said court, as and when called upon to do so, during the pendency of the trial against them, in this case. (20). After dictation of the judgment, the members of the Bar, present in Court, made a request to mark the judgment ``reportable. The request is allowed and the judgment is marked ``reportable.