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2011 DIGILAW 291 (CHH)

ATAL SHRIVASTAVA v. STATE OF C. G.

2011-08-19

PRASHANT KUMAR MISHRA

body2011
ORDER As per Hon'ble Shri Prashant Kumar Mishra, J. :- 1. The applicant, claiming to be an active political and social worker being a member of principal opposition party in the State as also a reputed builder and colonizer, has moved this application under Section 438 of the Cr.P.C. for grant of anticipatory bail, as he apprehends his arrest in connection with Crime No.330/2011, registered in Police Station Civil Lines, Bilaspur for offence under Sections 353, 332, 294, 506, 307 and 323/34 of the IPC. 2. Complainant O.P. Tiwari working as Superintendent Engineer in the Municipal Corporation, Bilaspur, lodged an FIR on 20-6-2011 at 19.45 hours alleging that when he was performing the official work in his office in the Municipal Corporation, Bilaspur, both the accused persons came to his office at about 7 pm and started making enquiry about his file and when they were informed that because of electricity problem he could not see the file and they should come tomorrow, the present applicant became enraged and started abusing the complainant by using obscene language and said that the complainant has to put his signature on the file instantly and threw all the files on the ground which were kept on the table of the complainant. The applicant caught hold of the collar of the shirt and when the complainant stood up, co-accused caught hold of his waist and the applicant started pressing his neck by using his both the hands and was saying that he will not spare the complainant. Because of the pressure on his neck, his breath started feeling obstruction and he could raise his voice with difficulty and at that time other employees of the Corporation came to the place of occurrence and separated the complainant and the accused persons. 3. Learned senior counsel appearing on behalf of the applicant argued that the applicant is a builder and his file seeking colonizer licence was pending since 2009 and the complainant was demanding bribe for clearing the file. However, when the applicant went to the office, the complainant attacked him and threw the chair on him causing injuries to the applicant. The matter was reported, but the police did not register any offence. However, when the applicant went to the office, the complainant attacked him and threw the chair on him causing injuries to the applicant. The matter was reported, but the police did not register any offence. It is further argued that initially he was admitted in the Chhattisgarh Institute of Medical Sciences, Bilaspur from where he was referred to the Apollo Hospital, Bilaspur and thereafter he was referred to the Higher Medical Centre at Delhi. According to learned senior counsel, the complainant was aggressor and the injury on the person of the applicant was found to be lacerated wound whereas the injuries on the person of the complainant were simple in nature. It is further submitted that taking the prosecution case as a whole, offence under Section 307 of the IPC is not made out. Except offence under Section 307 of the IPC, all other offences are triable by the Judicial Magistrate 1st Class wherein jail sentence is not mandatory. He would also submit that though the applicant was obtaining medical treatment during this period, yet the prosecution has completed the investigation and filed the charge sheet, thus investigation is complete. He has relied on judgments in the matters of Sanjay Kumar and another Vs. State of M.P.l, Bharat Chaudhary and another Vs. State of Bihar and anothe2, Ravindra Saxena Vs. State of Rajasthan3, State of Maharashtra & Anr Vs. Mohd. Sajid Husain Mohd. S. Husain etc.4 and Siddharam Satlingapa Mhetre Vs. State of Maharashtra and others5. 4. Per contra learned State Counsel argued that the prosecution needs his custody for interrogation and since the charge sheet has been filed when the applicant was absconding, the trial Court has issued warrant of arrest and the offences otherwise being serious, the applicant is not entitled for protection under Section 438 of the Cr.P.C. 5. Before proceeding, this Court shall take into account the pronouncement made by the Hon'ble Supreme Court in relation to nature of power and jurisdiction with the Courts while dealing with an application under Section 438 of the Cr.P.C. 6. In the matter of Mohd. Sajid Husain Mohd. Before proceeding, this Court shall take into account the pronouncement made by the Hon'ble Supreme Court in relation to nature of power and jurisdiction with the Courts while dealing with an application under Section 438 of the Cr.P.C. 6. In the matter of Mohd. Sajid Husain Mohd. S. Husain etc.4 (supra), the Hon'ble Supreme Court has held that the factors which are relevant for considering the application for grant of anticipatory bail are; (i) the nature and gravity or seriousness of the accusation as apprehended by the applicant; (ii) the antecedents of the applicant including the fact as to whether he has, on conviction by a Court previously undergone imprisonment for a term in respect of any cognizable offence; (iii) the likely object of the accusation to humiliate or malign the reputation of the applicant by having him so arrested, and (iv) the possibility of the applicant, if granted anticipatory bail, fleeing from justice. 7. In the matter of Ravindra Saxena3 (Supra), the Hon'ble Supreme Court has held that anticipatory bail can be granted at any time so long the applicant has not been arrested and the same cannot be denied merely because challan has been filed. Similar pronouncement has been made by the Hon'ble Supreme Court in the matter of Bharat Chaudhary and another2 (Supra). 8. In the matter of Siddharam Satlingappa Mhetre5 (Supra), the Hon'ble Supreme Court, after lucidly and elaborately dealing with its previous pronouncement and after relying on Constitution Bench Judgment in the matter of Gurbaksh Singh Sibbia Vs. State of Punjab6 has held in paragraphs-112 & 113 thus: "112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: . State of Punjab6 has held in paragraphs-112 & 113 thus: "112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail: . (i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made; (ii) The antecedents of the applicant including the fact as to whether the accused has previously undergone imprisonment on conviction by a court in respect of any cognizable offence; (iii) The possibility of the applicant to flee from justice; (iv) The possibility of the accused's likelihood to repeat similar or other offences; (v) Where the accusations have been made only the object of injuring or humiliating the applicant by arresting him or her; (vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people; (vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern; (viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused; (ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant; (x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail. 113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. 113. Arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of that case. The court must carefully examine the entire available record and particularly the allegations which have been directly attributed to the accused and these allegations are corroborated by other material and circumstances on record." 9. When the law thus stands pronounced by the Hon'ble Supreme Court, this Court shall now consider the allegations made against the present applicant to decide as to whether in the nature of allegations and his antecedents etc., the applicant is entitled to the benefit of anticipatory bail under Section 438 of the Cr.P.C. 10. Admittedly, the applicant's application for renewal of colonizer licence was pending since 21-7-2009 for which the required fee was deposited vide Annexure-A/2. Thus the application was pending for almost two years before the Corporation. There is nothing in the case diary to indicate that the officer concerned was not responsible to deal with the application filed by the applicant. In fact, in the FIR, it has been stated by the complainant that the applicant had come to meet him in relation to renewal of his colonizer licence meaning thereby that the purpose of the applicant's visit to the office was with respect to enquiring about his colonizer renewal licence and not for any other illegal purpose. It appears from the allegations made in the FIR that because of long pendency of the application and when he was asked to meet the officer next day, the applicant became enraged and caught hold of collar of the officer. Though it is alleged that the applicant tried to press his neck and thus was making an attempt on his life, yet from the nature of injuries suffered by the complainant, which have been found by the Medical Officer, it would appear that there are 3 abrasions; one on his nose, second on right lateral aspect of neck .and third on left side over chest. The injuries have been described as simple in nature. 11. Thus, from the nature of injuries and for the fact that no weapon has been used, it cannot be conclusively determined at this stage as to whether at the end of trial offence under Section 307 of the IPC would be made out. 12. The injuries have been described as simple in nature. 11. Thus, from the nature of injuries and for the fact that no weapon has been used, it cannot be conclusively determined at this stage as to whether at the end of trial offence under Section 307 of the IPC would be made out. 12. At this stage, it cannot be lost sight of that the applicant has also lodged a report and he was also sent for medical examination. The case diary contains medical report of the applicant's examination by the District Hospital, Bilaspur, who has found a lacerated wound on his right hand and abrasion on right arm. It was also found that the patient is complaining of severe pain in the abdomen with difficulty in breathing and vomiting sensation. However, no external injury was found on the abdomen and he was referred to the Chhattisgarh Institute of Medical Sciences, Bilaspur (for short CIMS). According to the applicant, he was admitted in the CIMS and thereafter referred to the Apollo Hospital, Bilaspur and from there he had gone for his further check up to Sir Gangaram Hospital, Delhi. 13. The prosecution has not pointed out any previous antecedents of the applicant of his involvement in any criminal activity of similar nature or any other nature. It has also not been argued that the applicant shall flee if granted anticipatory bail and shall not be available either for interrogation or for facing trial. 14. Apart from offence under Section 307 of the IPC for which the allegation is that the applicant pressed his neck, all other offences alleged against the applicant are triable by the Judicial Magistrate 1st Class wherein jail sentence is not mandatory. It is also to be kept in mind that only simple injury was found on only one side of the neck of the complainant whereas ordinarily when attempt to strangulate is made by both the hands, the injuries will be found on either side of the neck and as earlier observed in this order, it cannot be conclusively determined at this stage as to whether at the end of trial offence under Section 307 of the IPC would be made out. 15. 15. This Court is conscious of the fact that in the event anticipatory bail is granted in a case where an officer has been manhandled during office hours, it may have tendency to promote such incidents, however, at the same time nature of offence and other relevant factors are also required to be considered to keep balance between personal liberty of an individual, who is not a hardened criminal and the societal interest. In the present case, allegations have been made by both the parties, reports have been lodged by them to the police station and both of them have been sent for medical examination finding the injuries on the person of both individuals and further that admittedly the applicant was chasing the office of the Municipal Corporation for renewal of his colonizer licence for last about 2 years, by ordinary human conduct, it may be a case of sudden excitement or annoyance which led to scuffle and consequent manhandling of the officer. 16. The question is whether the applicant's arrest is necessary for interrogation and if the is not interrogated, the prosecution case shall fail ultimately benefiting the accused. 17. To consider this aspect, it is to be seen that the prosecution has already completed the investigation by recording statements of the witnesses who belonged to the office of the Municipal Corporation. There is no allegation that the applicant has used any weapon at the time of occurrence or that he had taken away some files with him which are necessarily to be recovered so as to establish the charge against him in the course of trial. From the nature of allegations, it appears that probably no recovery is required to be made from the applicant. But at the same time, the prosecution would definitely need to interrogate the applicant, as he is an offender against whom accusations have been made for committing cognizable offence. 18. In the matter of Siddharam Satlingappa Mhetre5 (supra), the Hon'ble Supreme Court has observed that the arrest should be the last option and it should be restricted to those exceptional cases where arresting the accused is imperative in the facts and circumstances of the case. 19. This Court has already discussed in the preceding paragraphs of this order that the applicant's arrest for making any recovery from him does not appear to be necessary for the prosecution. 20. 19. This Court has already discussed in the preceding paragraphs of this order that the applicant's arrest for making any recovery from him does not appear to be necessary for the prosecution. 20. Considering the totality of the circumstances as discussed above and for the fact that the applicant is not a hardened criminal, as the prosecution has not submitted any proof of his previous criminal record and further that he has received injuries in the same incident and there is no possibility of his absconding or fleeing from justice, this Court is inclined to release the applicant I on anticipatory bail. 21. Accordingly, the application is allowed and it is directed that if the applicant surrenders before the concerned police within a week and furnishes a personal bond in the sum of Rs.1 lakh together with 2 local sureties of Rs.1 lakh each and submit him self for interrogation, he shall be released on anticipatory bail on the following conditions: a. He shall make himself available for interrogation by a police officer as and when required; b. He shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer; c. He shall not leave the State of Chhattisgarh without the previous permission of the trial Court. 22. Since the charge sheet has already been filed, the applicant shall also be required to appear before the trial Court and after obtaining regular bail shall attend each and every date of hearing before the trial Court and shall not influence the witnesses. It is made clear that if any complaint is made against the applicant that he is influencing the witnesses or is not co-operating in the trial, this facility of bail shall be liable to be cancelled on an application moved either by the complainant or by the prosecution. Application Allowed.