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2002 DIGILAW 753 (MP)

Ramchandra v. State of M. P.

2002-08-06

S.S.JHA

body2002
JUDGMENT Applicant is arrested for the offences under sections 212 and 216 IPC and sections 11 and 13 of the Madhya Pradesh Dakaiti Aur Vyapharan Prabhavit Kshetra Adhiniyam, 1981 (hereinafter, referred to as the Adhiniyam). Preliminary objection is raised by the counsel for the State that under section 5(2) of the Adhiniyam, if objection is raised by the State then the applicant is not eligible for grant of bail. On this ground alone, trial Court has rejected the bail application. Counsel for the applicant submitted that to attract the provisions of the Adhiniyam, act or acts constituting the offence mentioned in the schedule of the Adhiniyam must have nexus with commission of the dacoity and this nexus must exist at the time when the act or acts are committed for constituting the "specified offence". In support of his contention, counsel for the applicant has placed reliance upon Full Bench Judgment of this Court in the case of Gulabchand Kannoolal v. State of M.P. and ors. [ 1982 JLJ 170 = 1982 MPLJ 7 ]. Counsel for the applicant has invited attention to the definition of the word dacoit in section 2(b) of the Adhiniyam, which is reproduced below :"dacoit" in relation to a dacoity and kidnapping in affected area, means a person who commits or has committed an offence punishable under section 395 of the Indian Penal Code or a specified offence, or as the case may be, a person accused of commission of any such offence. Section 2(f) of the Adhiniyam relates to specified offence. Specified offences are the offences specified in the schedule committed in relation to the area declared under section 3 if the offence forming part or arising out of I or connected with the commission of dacoity or kidnapping punishable under sections 302, 303, 304, 307,308,325, 326, 327 and 329 IPC. Clause (v) of the schedule under section 2(f) of the Adhiniyam relates to supply of food materials, clothings, means of communications, transport and other articles to the persons assembled before or after the commission of dacoity or preparing to commit dacoity. Counsel for the applicant submitted that the offences punishable under sections 212 and 216 IPC cannot be in any way connected with the offences punishable under the Adhiniyam. Applicant does not fall in the definition of the dacoit under section 2(b) of the Adniniyam. Counsel for the applicant submitted that the offences punishable under sections 212 and 216 IPC cannot be in any way connected with the offences punishable under the Adhiniyam. Applicant does not fall in the definition of the dacoit under section 2(b) of the Adniniyam. "Specified offences" under section 2(f) should be accepted in the same sense in which it is defined in "Section 2(f). Reading both these sections together it is clear that person committing the offences mentioned in the schedule will not fall within the definition of dacoit unless it is an offence under section 395 IPC or forming part or arising out of or connected with commission of the dacoity. Counsel for the applicant submitted that none of the ingredients is reflected in the case diary, therefore, provisions of the Adhiniyam are not applicable to the instant case. Counsel for the applicant further submitted that the evidence of the offences under sections 212 and 216 is very weak. For harbouring the offender under section 212 IPC, there must be material on record to prove that the accused know about the commission of the said offence. Even if it is a case of harbouring, there must be evidence on record that harbouring was with an intention of screening the offender from legal punishment. Similarly, under section 216 IPC accused must know that he is harbouring the offender who had escaped from the custody or whose apprehension has been ordered and he is harbouring the person with an intention of preventing him from being apprehended. Counsel for the applicant submitted that in the absence of aforesaid ingredients for commission of the offence under sections 212 and 216 IPC, applicant is entitled to be released on bail. Counsel for the State has invited attention to the definition of "harbouring" in section 52A IPC and submitted that the applicant had offered food and cartridges to the dacoits, therefore, he is not entitled for bail and the provisions of the Adhiniyam are attracted. From bare reading of sections 2(b) and 2(f) of the Adhiniyam, it is clear that two conditions are necessary for making specified offence (i) that it should be mentioned in the schedule and (ii) that it should be an offence forming part or arising out of or connected with commission of the dacoity. There is distinction between reasonable suspicion and prima facie proof. Prima facie proof consists of admissible evidence. There is distinction between reasonable suspicion and prima facie proof. Prima facie proof consists of admissible evidence. Suspicion can take into account matters that could not be put in evidence at all. Suspicion can take into account also matters which though admissible could not form part of a prima facie. Full Bench of this Court in the case of Gulabchand Kannoolal (supra) has considered the matters warranting grant of bail, wherein it is held that after completion of investigation, if there is no prima facie proof in respect of accusation of commission of dacoity, then the ban of grant of bail to dacoit will not apply. The most important question involved in the case is whether applicant is a dacoit ? From the definition of dacoit under section 2(b) of the Adhiniyam, there is no ingredient or prima facie proof on record that the applicant is a dacoit. Reading section 2(b) coupled with section 2(f) of the Adhiniyam, there is no iota of proof that applicant is a dacoit. There is nothing on record that food was supplied for commission of the offence or for preparation of dacoity. In the said facts of the case, ban under section 5(2) of the Adhiniyam will not be attracted. Considering the facts of the case, application is allowed. Applicant is directed to be released on bail on his furnishing a personal bond in the sum of Rs. 30,000/- (Rs. thirty thousand) with two solvent sureties each in the like amount to the satisfaction of the trial Court, undertaking to appear before the trial Court as and when directed by that Court. Applicant shall not leave the jurisdiction of the trial Court without its prior permission.