Research › Search › Judgment

Punjab High Court · body

2012 DIGILAW 126 (PNJ)

Kobad Gandhi v. State of Punjab

2012-01-23

VIJENDER SINGH MALIK

body2012
JUDGMENT VIJENDER SINGH MALIK, J The present petition has been brought by the petitioner, Kobad Gandhi under the provisions of section 439 Cr. P.C. for grant of regular bail in a case registered by way of FIR No.57 dated 23.1.2010 at Police Station Sadar, Patiala, District Patiala for an offence punishable under sections 10, 13, 18 and 20 of the Unlawful Activities (Prevention) Act, 1967 and sections 419 and 120-B of Indian Penal Code. The case against the petitioner, in brief, is that he is a member of Central Committee of a banned party, named, CPI (Maoist) and has been delivering speech to people exhorting them to disturb the unity and integrity of the State and to disturb peace. Learned counsel for the petitioner has submitted that the speech, as per the FIR, of the petitioner was of April/May, 2009 which he is alleged to have delivered in Punjabi University, Patiala asking people to join his party and to achieve its above mentioned objects. He has further submitted that the party has been banned on June 22nd, 2009 as per Annexure P2. He has further submitted that the speech, even if it is assumed to have been delivered by the petitioner, did not have any effect on the audience. He submitted that if the speech allegedly delivered by the petitioner had no effect on his audience, then he cannot be held to have prima facie committed any offence. In this regard, he has placed reliance on a decision of Hon`ble Supreme Court of India in Balwant Singh Vs. State of Punjab 1995 AIR (SC) 1785. In the said case, the appellants were accused of raising slogans such as “Khalistan Zindabad” “Raj Karega Khalsa” etc., and as none was incited by the slogans, it was held that no offence under section 124-A and 153-A IPC has been committed. Learned counsel for the petitioner has further submitted that so far as the allegations are there constituting the offence under section 419 IPC, it is alleged that he was delivering the speed under fake identity of Prof. Kishore. He has submitted that the offence under section 419 IPC is bailable. Commenting generally on the case, learned counsel for the petitioner has submitted that the witnesses examined by the investigating agency have been contacted after two years of the alleged speech. Kishore. He has submitted that the offence under section 419 IPC is bailable. Commenting generally on the case, learned counsel for the petitioner has submitted that the witnesses examined by the investigating agency have been contacted after two years of the alleged speech. According to him, it is unbelievable that people would recall something that happened two years back with full details. He has submitted that the case prima facie appears to be false. He has further submitted that the petitioner is not alleged to have collected arms or having done anything else to subvert the order in the State or for over-throwing the Government as by law established. According to him, the petitioner is in custody since 22.2.2010 and that the trial is not proceeding against him because the same has been adjourned sine die for the reason that Lt. Governor of Delhi has made an order preventing the taking out of the petitioner from Tihar Jail for his appearance before any other court outside Delhi till the case against him in Delhi court is decided. In support of his submissions, learned counsel for the petitioner has cited some other cases. They are Anup Bhuyan Vs. State of Assam, Criminal Appeal No. 889 of 2007 decided by Hon`ble Supreme Court of India, State of Kerala Vs. Raneer, a decision of Hon`ble Supreme Court of India dated 3.1.2011, R.K.Krishna Kumar Vs. State of Assam and others, 1988 Crl. L.J. 848, S.N.Thapa, Addl. Collector of Customs (Marine and Preventive), Bombay Vs. State of Maharashtra 1994 Crl. L.J. 3845 and Ramesh Chandra Nigam Vs. The State 1952 Crl. L.J. 682. Learned State counsel has opposed the prayer. He has read the statements of the witnesses recorded by the Investigating Officer. According to him, the petitioner exhorted people to join his party for overthrowing the Government. According to him, the statements do not show that speech had been made only once. According to him, there is nothing surprising to hear from people about such incident even after passage of two years. He has submitted that such type of incidents remain clear in the memory because they are not routine incidents. It is true that no effect, as might have been desired by the petitioner, was seen of his speech on his audience. However, it is not a case of just raising of slogans like that in Balwant Singh's case (supra). He has submitted that such type of incidents remain clear in the memory because they are not routine incidents. It is true that no effect, as might have been desired by the petitioner, was seen of his speech on his audience. However, it is not a case of just raising of slogans like that in Balwant Singh's case (supra). Here, the petitioner articulated his views and had forcefully put them to his audience. He never wanted any effect of his words on his audience at the same time. Therefore, these facts distinguish the case in hand from the case in Balwant Singh's case (supra). CPI (Maoist), as is claimed by learned counsel for the petitioner, may have been banned on 22.6.2009, yet CPI (Maoist) is the name of the party that emerged after merger of Communist Party of India (Marxist-Leninist)-People's War and Maoist Communist Centre and both of them had been banned much earlier to that. It is true that the trial in the case has been adjourned sine die, but the same is due to the fact that similar cases are there against the petitioner in many States and keeping in view the safety of the petitioner as well as the chances of his escape, Lt. Governor, Delhi has made an order preventing his being taken to other States for attending the trial and this circumstance also does not make out a case for bail. The judgments cited by learned counsel for the petitioner have no application to the facts of the case. In Anup Bhuyan's case (supra), a case under TADA Act, the confession was there of the appellant that he was a member of ULFA. He was not alleged to have indulged in such activities as are alleged in the case of the petitioner. In Raneef's case (supra), the petitioner had not been a member of the group, which had attacked Prof. T.J.Jacob. He was only accused of giving treatment to one of the members of that group. Similarly, the facts of other cases can also be distinguished. Keeping in view these circumstances, I do not find the petitioner to be entitled to bail. The petition is, consequently, dismissed.