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2004 DIGILAW 1192 (ALL)

Ram Bharoshi v. State of Uttar Pradesh

2004-06-14

AMAR SARAN

body2004
AMAR SARAN, J. ( 1 ) THIS application has been filed for quashing criminal proceedings in Miscellaneous Case No. 144 of 2003 (Foran Singh v. Ram Bharoshi and others) under Sections 147/148/149/427/452/323/307 IPC, pending in the court of Judicial Magistrate Firozabad and also for quashing the order dated 11-2-2004 passed by the Judicial Magistrate, Firozabad accepting the protest petition, rejecting the final report, and summoning the accused. ( 2 ) HEARD learned Counsel for the applicants and the learned A. G. A. for the State. ( 3 ) LEARNED Counsel for the applicants argued that the applicants had lodged an earlier FIR on 18-3-2003, which was registered at case crime No. 46 of 2003, under Sections 323/324/504/506 IPC, at police station Ramgarh, district Firozabad in respect of the incident which took place on 18- 3-2003, against opposite party No. 2 and his other relations. In this incident three persons had received injuries on the side of the applicants. In that case the Opposite Party No. 2 and his sons and brother were arrested and thereafter enlarged on bail. ( 4 ) IT was contended that the FIR in the present case against the applicants had been registered belatedly on 21-5-2003 at Case Crime No. C-8/2003, at P. S. Ramgarh on the basis of an order passed by the Judicial Magistrate, Firozabad on an application moved by the O. P. No. 2 under Section 156 (3) Cr. P. C. on 2-4-2003. According to the learned counsel this case appears to be by way of counter blast to the earlier FIR filed by the applicants on 18-3-2003. A final report had even been submitted in respect of the FIR against the applicants on 29-5-2003 by the Investigating Officer. It was further contended by the learned Counsel for the applicants that the Judicial Magistrate, Firozabad had committed an error of law in passing the order summoning the applicants on 11-2-2004 after perusing certain documents and affidavits and neglecting to follow the procedure of a complaint case. ( 5 ) IN my opinion, as the opposite party No. 2 had gone to jail in pursuance of the FIR, the delay in lodging the application under Section 156 (3) Cr. P. C. is not fatal for the prosecution. ( 5 ) IN my opinion, as the opposite party No. 2 had gone to jail in pursuance of the FIR, the delay in lodging the application under Section 156 (3) Cr. P. C. is not fatal for the prosecution. It can also not be denied at this stage that the opposite party No. 2, Foran Singh had received injuries in this incident, which were examined on 19-3-2003 by the Emergency Medical Officer at the S. N. M. Hospital, Firozabad. Looking to the factual nature of the allegations, the mere lodging of an earlier FIR against the opposite party No. 2 and others can not provide a ground for quashing criminal proceedings against the applicants. ( 6 ) SO far as the other contentions, relating to reliance on affidavits and not treating this case as a complaint case are concerned, these objections also lack substance. It is well settled by a catena of judgments of the Apex Court and this Court, that cognizance can be taken on a protest petition after perusal of the case diary and other material as has been done in this case. Even when a protest petition accompanied by some affidavits is filed against a final report, there is no necessity for proceeding with the case as a complaint case, and for taking cognizance only after statements under Sections 200 and 202 Cr. P. C. are recorded. It is open to the Court taking cognizance to summon the accused straight-away even after submission of a final report. ( 7 ) IT appears that the present application under Section 482 Cr. P. C. has been filed because the applicants certain an apprehension that as Section 307 IPC is one of the sections for which they have been summoned by the Magistrate, the Magistrate will not grant bail, because generally Magistrates do not grant bail, the moment a case is found to be one which is triable by a Court of Sessions. This is irrespective of the fact whether the case is punishable with death or imprisonment for life or with a lesser sentence. ( 8 ) FROM the FIR, I find that the allegations were that although applicants Ram Bharosey and Han Shanker armed with guns and Bantoo armed with a country made pistol fired at Subhas and Kailicharan, the latter took shelter near a wall and remained unhurt. ( 8 ) FROM the FIR, I find that the allegations were that although applicants Ram Bharosey and Han Shanker armed with guns and Bantoo armed with a country made pistol fired at Subhas and Kailicharan, the latter took shelter near a wall and remained unhurt. Only the informant Foran Singh received injuries with dandas carried by Chandrapal and Netrapal. As no injury has been caused to Kalicharan and Subhash as a result of the fires from the guns of Ram Bharoshi and Han Shankar or the country made pistol carried by Bantoo, even if the prosecution version is taken at its face value, the present case would be a case of an injury less 307 IPC. Such an offence is not punishable with imprisonment for life, but is only punishable with imprisonment up to ten years. In this connection, Section 307 IPC may be usefully perused 307. Attempt to murder: Whoever does any act with such intention or knowledge, and under such cir-cumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned. ( 9 ) FURTHERMORE, under Section 437 Cr. PVC. a complete bar has been imposed on any court, other than the High court or the court of Sessions, i. e. the Magistrate to grant bails only in cases where reasonable grounds appear that the accused is guilty of an offence punishable with death or imprisonment for life. There is no such prohibition on the Magistrates to consider and grant bails in cases which are punishable by sentences lesser than death or imprisonment for life. In fact neither Section 437 Cr. P. C. nor any other provision in the Code of Criminal Procedure makes any distinction between a Sessions triable case and a case triable by a Magistrate. The distinction only relates to cases which are punishable with death or imprisonment for life, and offences which are punishable with a lesser sentence. ( 10 ) IN this connection Section 437 (1) (i) may be perused: 437. The distinction only relates to cases which are punishable with death or imprisonment for life, and offences which are punishable with a lesser sentence. ( 10 ) IN this connection Section 437 (1) (i) may be perused: 437. When bail may be taken in case of non-bailable offence: (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court under than the High Court or Court of Sessions, he may be released on bail, but (I) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. ( 11 ) NOW the present case of injury less 307 IPC being one which is only punishable with imprisonment up to a period of ten years, I do not think there is any legal bar on the Magistrate to consider and grant bail, if he is satisfied that a case for bail is made out on merits. The Magistrate is of course expected to exercise this jurisdiction on well settled principles, and to consider the serious-ness of allegations, whether they are corroborated in material particulars by some independent evidence or circumstances, and to take into account other attendant features such as criminal history of an accused, the likelihood of the accused co-operating with the investigation and trial and not absconding or tampering with the witnesses. ( 12 ) IT is imperative that the Judicial Magistrates give up the negative tendency to treat an application for bail in a Sessions triable case as an untouchable subject, and to consider and even grant bail, if a case for bail is made out on merits, in the light of settled principles granting bail, in those cases where the Code of Criminal Procedure has not prohibited grant of bails by the Magistrates. ( 13 ) THERE are a number of offences in the Penal Code which are not punishable with death or imprisonment for life, but they are triable by the Court of Sessions, where the Magistrates invariably refuse bail, because they entertain a wrong notion that they are disentitled to grant bails in such cases, even if the case is one where bail ought to have been granted on merits. This approach is also in the teeth of a Division Bench decision of this Court, Vijay Kumar and others v. State of U. P. and other. ( 14 ) THE result of this unhealthy practice is that a person against whom an FIR is lodged relating to any Sessions triable offence, which on a plain reading appears to be a case of false or malicious prosecution, uncorroborated by any independent material, the accused is left at the mercy of the police, in whose favour the Magistrate has virtually abdicated his jurisdiction. An accused may have to remain in jail for some time before his bail application is heard and granted by the Sessions Court, after the Magistrates routine rejection of his prayer for bail even in those minor Sessions triable offences where there may be no need for taking an accused in custody for the purpose of investigation, or where palpably he appears to have been implicated falsely, and there are no other attendant circumstances disentit-ling the accused from an order of bail. A stint in jail can be a source of great humiliation for a maliciously prosecuted accused who enjoys some social status. ( 15 ) SESSIONS Courts which could have given their undivided attention to other important matters have also unnecessarily to waste their time on such bail applications, because of the Magistrates refusal to consider bail applications in all Sessions triable cases irrespective of the length of punishment prescribed. I am told that some learned Sessions Judges also entertain this wrong notion that Magistrates are barred from granting bail in all Sessions triable cases. In the proforma of a questionnaire that is sent by the High Court for inspec-tion of the subordinate courts, by the District and Sessions Judges, there is a question whether a Magistrate has granted bail in any Sessions triable case. The question reads as follows :whether during the quarter under review bails were granted by the Magistrate in any case exclusively triable by the Court of Session? If so, particulars be given. The import of this question and its expected answer is no. The standard reply of the Magistrtes to this question is also Tnil or no. The question reads as follows :whether during the quarter under review bails were granted by the Magistrate in any case exclusively triable by the Court of Session? If so, particulars be given. The import of this question and its expected answer is no. The standard reply of the Magistrtes to this question is also Tnil or no. Obviously this question (with the expected answer) has been erroneously inserted in the questionnaire on a misreading of the legal position and Section 437 (1) of the Code of Criminal Procedure, and on an erroneous assumption that there is an absolute bar on a Magistrate to grant bail in Sessions triable cases even with respect to those offences which are not punishable with death or imprisonment for life. ( 16 ) I have no reason to think that our Magistrates who have been appointed after a careful selection procedure will act otherwise than in accordance with settled legal principles and precedents when dealing with bail applications in Sessions triable cases, not punishable with death or imprisonment in for life, or that they would fail in dispensing justice without fear or favour, or in maintaining the highest standards of integrity, impartiality and objectivity, when they are called upon to discharge the sacred duties of their judicial office. At any rate we have a system of checks and balances, for ensuring the purity of the judicial system. The Magistrates check the functioning of the police and their functioning is in turn monitored by a hierarchy of criminal courts, beginning with the Sessions Courts, and going up to the High Court and the Honble Supreme Court. ( 17 ) IN the light of the aforesaid discussion it is abundantly clear that there is no prohibition on a Magistrate to grant bail in a Sessions triable case, unless it is punishable with death or imprisonment for life, and it is absolutely necessary that the Magistrate give up the erroneous practice of refusing to consider or grant bails in such cases where there is no prohibition under the Code of Criminal Procedure. ( 18 ) IN this view of the matter, although there is no ground for quashing criminal proceedings in the present case, it is directed that if the applicants appear and apply for bail before the Judicial Magistrate, Firozabad, the Magistrate shall consider and dispose of their bail application expeditiously in the light of the observations and principles alluded to hereinabove. With these observations, this writ petition is finally disposed of. Petition disposed of. . .