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Himachal Pradesh High Court · body

2013 DIGILAW 1001 (HP)

PREMA v. STATE OF HIMACHAL PRADESH

2013-12-05

SANJAY KAROL

body2013
JUDGEMENT SANJAY KAROL, J. - 1. ALL these petitions arise out of same FIR and since common questions of law and fact and involved, hence, are being disposed of by a common order. 2. SHRI Vinod Kumar, Additional Superintendent of Police, Bilaspur, is present alongwith record. Record perused and returned. Status report taken on record. All the petitioners are present in person. 3. FIR No.57 of 2013, dated 17.9.2013, under the provisions of Sections 143, 443, 448, 430, 120-B of the Indian Penal Code, as also Sections 3(1)(V)(xiii) and Sub Section 2(vii) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (hereinafter referred to as the Act), stands registered at Police Station, Swarghat, District Bilaspur, Himachal Pradesh. 4. APPREHENDING arrest, petitioners approached this Court, seeking bail under the provisions of Section 438 of the Code of Criminal Procedure. On 19.11.2013, petitioners surrendered and Court passed an interim order, granting protection, subject to their complying with the conditions imposed therein. Petitioners have joined investigation and fully cooperated. According to the petitioners, they are residents of village Khurani. A water supply scheme, under the Vikas Mein Sehyog Yojna, was sanctioned for providing water to the residents of villages Khurani and Dadwal. The Scheme was implemented. Water was to be lifted through a pump. Certain dispute arose between the residents of two villages, with regard to operation of this water pump. Petitioners are residents of village Khurani, whereas complainant, on whose asking FIR stands registered, is a resident of village Dadwal. Complainant belongs to a category notified under the provisions of the Act. 5. ACCORDING to the petitioners, there is a chequered history, leading to registration of the FIR. Even though offence pertains to the year 2010, police, despite the fact that State had filed cancellation report, with regard to the very same complaint, has now registered a case and that too after a period of three years. 6. THE Lift Irrigation Scheme was installed in the year 2003 when a sum of Rs.2,65,000/ - was incurred for its installation. Till the year 2010, there was no dispute with regard to supply of water to the residents of both the villages. Allegedly on 28.4.2010, supply of water was blocked to village Dadwal. According to the police, the pump house was locked by the residents of village Khurani. This allegedly was on asking of local MLA. Till the year 2010, there was no dispute with regard to supply of water to the residents of both the villages. Allegedly on 28.4.2010, supply of water was blocked to village Dadwal. According to the police, the pump house was locked by the residents of village Khurani. This allegedly was on asking of local MLA. It is not in dispute that the residents of village Dadwal, including the present complainant, approached this Court by filing CWP No.2096 of 2010. When the matter came up for hearing, the Court directed the Deputy Commissioner, Bilaspur, to ensure full supply of drinking water to the petitioners. Thereafter, Court also directed the Chairman of the District Legal Services Authority, Bilaspur, to look into the complaints of the people, with regard to non-supply of drinking water. The Chief Judicial Magistrate, who is the Secretary of the District Legal Services Authority, Bilaspur, visited the spot on 29.5.2010 and submitted his report. As per report, on the door of the pump house, there were two locks. From the pump house, there was no water pipeline connecting to village Khurani. 7. SIGNIFICANTLY no grievance with regard to the alleged offences where made at that point in time. 8. THE matter was also taken up by the Chairman of the District Legal Services Authority, Bilaspur, in his Chamber. But the issue could not be resolved, for reason that residents of the villages were demanding a direct storage tank. On 3.6.2010, when the matter came up for hearing before this Court, it was observed that both the parties i.e. residents of village Khurani and residents of village Dadwal, had installed their respective locks. As such they were directed to remove the same. Superintendent of Police, Bilaspur, was also directed to break open the locks, if required, and ensure that water supply, as it existed on 20.3.2010, is restored to the respective villages. It is not in dispute that this order stands complied with. 9. ON 6.9.2010, this Court, considering that disputed questions of facts could not be adjudicated in the writ petition and the dispute being more of civil nature, disposed of the petition, reserving liberty to the petitioners, i.e. residents of village Dadwal to approach the Civil Court. 10. IT is not in dispute that till date no such Civil Suit stands filed. ON 6.9.2010, this Court, considering that disputed questions of facts could not be adjudicated in the writ petition and the dispute being more of civil nature, disposed of the petition, reserving liberty to the petitioners, i.e. residents of village Dadwal to approach the Civil Court. 10. IT is not in dispute that till date no such Civil Suit stands filed. But what is intriguing is that instead of approaching the Civil Court, present complainant who was also one of the writ petitioners, filed a complaint in the Court of the Chief Judicial Magistrate, Bilaspur, under the provisions of the Act as also Indian Penal Code. The matter was referred to police and at that point in time, State filed cancellation report. This report was filed somewhere in the year 2011. On 8.5.2012, the Chief Judicial Magistrate, Bilaspur, passed an order that there was no justification registration of an FIR. The order of the Chief Judicial Magistrate, however, was set aside by the Sessions Judge, Bilaspur, on 7.8.2013. It is now that FIR stands registered on 17.9.2013. Whether the Sessions Judge, Bilaspur, could have passed that order or not, in view of orders passed by this Court, is a question which is not considered and left open. What is relevant for determining the present petitions is the fact that dispute with regard to interference with the enjoyment of right of water was subject matter of writ petition before this Court. Allegations made in the complaint, on the basis of which FIR now stands registered, as is so admitted at the bar, were already brought to the notice of this Court, at the time when various interim orders were passed and writ petition was disposed of. The Court specifically observed that both the parties, i.e. the residents of village Dadwal as also Khurani had put up their locks. 11. FURTHER it is significant to note that the alleged offence took place in April, 2010. At no point in time did this Court take cognizance of the allegations made by the present complainant. The complaint was also filed only after dismissal of the writ petition. As such, considering the entire factual matrix, in my considered view, petitioners have made out a case for confirmation of interim order dated 19.11.2013 and grant of regular bail. 12. At no point in time did this Court take cognizance of the allegations made by the present complainant. The complaint was also filed only after dismissal of the writ petition. As such, considering the entire factual matrix, in my considered view, petitioners have made out a case for confirmation of interim order dated 19.11.2013 and grant of regular bail. 12. IT is not the case of police that any one of the petitioners are not residents of the State or otherwise have not made themselves available for investigation at any point in time. There is also no likelihood of any of the petitioners fleeing away from the jurisdiction of this Court. They are permanent residents and have landed property within the State. Whether the alleged offence took place or not is a matter, which is to be determined after trial, but prima facie, in the backdrop of earlier litigation and in the given facts and circumstances it cannot be said that petitioners are not entitled for protection as prayed for. This Court has taken into account the nature of accusation, the severity of punishment in case of conviction and the material so far collected by the prosecution during investigation. I am of the considered view that there is no apprehension made out by the State that in the event of the petitioners being enlarged on bail, they would tamper with the witnesses or extend any threats to the complainant. There is no probability of the petitioners abusing their liberty nor would they interfere or in any manner impede with the course of justice. Petitioners are also not likely to flee away from justice. They, through their learned counsel, undertake to make themselves available during the course of investigation, if required, as also during trial, if any. 13. FOR all the aforesaid reasons, interim order dated 19.11.2013, is made absolute. The petitioners shall be on bail till such time Challan is presented in the Court for trial where after they shall approach the Court for regular bail, in accordance with law. Needless to add, during this period petitioners shall fully comply with all the statutory conditions laid down under the provisions of Section 438 of the Cr.P.C. As a matter of abundant caution, it is clarified that petitioners shall neither tamper with the evidence nor try to influence the witnesses. Needless to add, during this period petitioners shall fully comply with all the statutory conditions laid down under the provisions of Section 438 of the Cr.P.C. As a matter of abundant caution, it is clarified that petitioners shall neither tamper with the evidence nor try to influence the witnesses. All the petitioners, except female petitioner(s), shall make themselves available for investigation as and when required by the Investigating Officer. They shall not leave the country without prior permission of the Court. The female petitioner(s) shall be interrogated strictly in accordance with law. 14. ANY observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above. With the aforesaid observations, all the petitions stand disposed of.