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Himachal Pradesh High Court · body

2013 DIGILAW 981 (HP)

MANJEET SINGH v. STATE OF H. P.

2013-11-25

DEV DARSHAN SUD

body2013
JUDGEMENT DEV DARSHAN SUD, J.- 1. ALL these petitions are being disposed of by a common order. The petitioners have approached this Court praying for grant of anticipatory bail in case F.I.R. No.115 of 2013 registered at Police Station, Bangana under Sections 325, 341, 343, 147, 148, 149, 504 and 506 of the Indian Penal Code (hereinafter 'IPC'). 2. THE allegations are that a false case has been made out against the petitioners, who have no concern with the offence. The application then proceeds that the petitioners tried to approach the learned Sessions Judge at Una but the police officials entered the office of the learned Advocate and stopped him from preparing the bail application and tried to arrest the petitioners along with Whether reporters of the Local papers are allowed to see the judgment?. Yes. other persons, whose names have not been mentioned in the F.I.R. The other grounds urged are that no recovery is to be made from the petitioners. It is then pleaded that though a false case has been made out against the petitioners, they being responsible citizens are willing to associate with the Investigating Agency. Petitions were taken up for consideration on 24.10.2013 when interim bail was granted with the direction that the petitioners shall join investigation. At this juncture, I note that according to the submission of the learned Additional Advocate General that offences under Sections 325,341, 343, 147, 148, 149, 504 and 506 of the Indian Penal Code are disclosed vide F.I.R. No. 115 of 2013 on 21.10.2013 according to which serious and grievous injuries were caused to Shri Parveen Kumar who was then taken for treatment to Inscol Hospital, Sector 34-A, Chandigarh as the hospital at Una had referred the injured for further treatment to a specialized hospital. 3. NUMBER of submissions has been made by the learned counsel appearing for the petitioners as also the learned Additional Advocate General. 3. NUMBER of submissions has been made by the learned counsel appearing for the petitioners as also the learned Additional Advocate General. Learned counsel for the petitioners urged (a) that the petitioners have been falsely implicated as there are numbers of civil and criminal disputes pending between the parties (b) that the petitioners are not involved in the case (c) the record of Inscol Hospital, Chandigarh cannot be relied upon for the reason that one of relatives of the injured is working there as an Accountant and he is in a position to influence the medical opinion (e) the complainant heads a mining mafia and is a danger to the entire village community. 4. LEARNED counsel relies upon the decision of the Supreme Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and others, (2011) 1 SCC 694 to urge that the petitioners are entitled to bail. The Supreme Court held: 83. In every civilized democratic country, liberty is considered to be the most precious human right of every person. The Law Commission of India in its 177th Report under the heading 'Introduction to the doctrine of "arrest" has described as follows: "Liberty is the most precious of all the human rights. It has been the founding faith of the human race for more than 200 years. Both the American Declaration of Independence, 1776 and the French Declaration of the Rights of Man and the Citizen, 1789, spoke of liberty being one of the natural and inalienable rights of man. The universal declaration of human rights adopted by the general assembly on United Nations on December 10, 1948 contains several articles designed to protect and promote the liberty of individual. So does the international covenant on civil and political rights, 1996. Above all, Article 21 of the Constitution of India proclaims that no one shall be deprived of his right to personal liberty except in accordance with the procedure prescribed by law. Even Article 20(1) and (2) and Article 22 are born out of a concern for human liberty. As it is often said, "one realizes the value of liberty only when he is deprived of it." Liberty, along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by the Constitution. Of equal importance is the maintenance of peace, law and order in the society. Unless, there is peace, no real progress is possible. As it is often said, "one realizes the value of liberty only when he is deprived of it." Liberty, along with equality is the most fundamental of human rights and the fundamental freedoms guaranteed by the Constitution. Of equal importance is the maintenance of peace, law and order in the society. Unless, there is peace, no real progress is possible. Societal peace lends stability and security to the polity. It provides the necessary conditions for growth, whether it is in the economic sphere or in the scientific and technological spheres." 84. Just as the Liberty is precious to an individual, so is the society's interest in maintenance of peace, law and order. Both are equally important. 85. It is a matter of common knowledge that a large number of under trials are languishing in jail for a long time even for allegedly committing very minor offences. This is because section 438 Cr.P.C. has not been allowed its full play. The Constitution Bench in Gurbaksh Singh Sibbia Vs. State of Punjab, (1980) 2 SCC 565 clearly mentioned that section 438 Cr.P.C. is extraordinary because it was incorporated in the Code of Criminal procedure, 1973 and before that other provisions for grant of bail were sections 437 and 439 Cr.P.C. It is not extraordinary in the sense that it should be invoked only in exceptional or rare cases. Some courts of smaller strength have erroneously observed that section 438 Cr.P.C. should be invoked only in exceptional or rare cases. Those orders are contrary to the law laid down by the judgment of the Constitution Bench in Sibbia's case (supra).......... 87. The complaint filed against the accused needs to be thoroughly examined including the aspect whether the complainant has filed false or frivolous complaint on earlier occasion. The court should also examine the fact whether there is any family dispute between the accused and the complainant and the complainant must be clearly told that if the complaint is found to be false or frivolous, then strict action will be taken against him in accordance with law. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law....... 89. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. If the connivance between the complainant and the investigating officer is established then action be taken against the investigating officer in accordance with law....... 89. It is imperative for the courts to carefully and with meticulous precision evaluate the facts of the case. The discretion must be exercised on the basis of the available material and the facts of the particular case. In cases where the court is of the considered view that the accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided. 90. A great ignominy, humiliation and disgrace is attached to the arrest. Arrest leads to many serious consequences not only for the accused but for the entire family and at times for the entire community. Most people do not make any distinction between arrest at a pre-conviction stage or post- conviction stage............. SCOPE AND AMBIT OF ANTICIPATORY BAIL: 109. A good deal of misunderstanding with regard to the ambit and scope of section 438 Cr.P.C. could have been avoided in case the Constitution Bench decision of this court in Sibbia's case (supra) was correctly understood, appreciated and applied. This Court in the Sibbia's case (supra) laid down the following principles with regard to anticipatory bail: a) Section 438(1) is to be interpreted in light of Article 21 of the Constitution of India. b) Filing of FIR is not a condition precedent to exercise of power under section 438. c) Order under section 438 would not affect the right of police to conduct investigation. d) Conditions mentioned in section 437 cannot be read into section 438. e) Although the power to release on anticipatory bail can be described as of an "extraordinary" character this would "not justify the conclusion that the power must be exercised in exceptional cases only. "Powers are discretionary to be exercised in light of the circumstances of each case. f) Initial order can be passed without notice to the Public Prosecutor. Thereafter, notice must be issued forthwith and question ought to be reexamined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant. Relevant consideration for exercise of the power: 111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. Thereafter, notice must be issued forthwith and question ought to be reexamined after hearing. Such ad interim order must conform to requirements of the section and suitable conditions should be imposed on the applicant. Relevant consideration for exercise of the power: 111. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail. We are clearly of the view that no attempt should be made to provide rigid and inflexible guidelines in this respect because all circumstances and situations of future cannot be clearly visualized for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on facts and circumstances of each case. As aptly observed in the Constitution Bench decision in Sibbia's case (supra) that the High Court or the Court of Sessions to exercise their jurisdiction under section 438 Cr.P.C. by a wise and careful use of their discretion which by their long training and experience they are ideally suited to do. In any event, this is the legislative mandate which we are bound to respect and honour. 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 the other offences. v. Where the accusations have been made only with 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 accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, 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. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, 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. 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 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. 114. These are some of the factors which should be taken into consideration while deciding the anticipatory bail applications. These factors are by no means exhaustive but they are only illustrative in nature because it is difficult to clearly visualize all situations and circumstances in which a person may pray for anticipatory bail. If a wise discretion is exercised by the concerned judge, after consideration of. entire material on record then most of the grievances in favour of grant of or refusal of bail will be taken care of. The legislature in its wisdom has entrusted the power to exercise this jurisdiction only to the judges of the superior courts. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available. In consonance with the legislative intention we should accept the fact that the discretion would be properly exercised. In any event, the option of approaching the superior court against the court of Sessions or the High Court is always available. (P.728-737) It is on these principles, learned counsel for the petitioners urges that since no investigation is required, there are cross cases between the complainant and the accused and there is no likelihood of the accused fleeing from the jurisdiction of the learned Sessions Judge, no recovery is to be effected and the complainant poses a danger to the entire village, the bail should and ought to be granted as a matter of right to the accused. 5. IN opposition to the bail application, the learned Additional Advocate General relies upon the decision of the Supreme Court in State Rep. By The C.B.I. Vs. Anil Sharma, (1997) 7 SCC 187 , wherein the Court holds: 7. High Court has approached the issue as through it was considering a prayer for granting regular bail after arrest. Learned Single Judge of the High Court reminded himself of the principle that it is well-settled that bail and not jail is a normal Rule and then observed thus: "unless exception circumstances are brought to the notice of the Court which may defeat the proper investigation and fair trial, the Court will not decline bail to a person who is not accused of an offence punishable with death or imprisonment for life. In the present case, no such exceptional circumstances have been brought to the notice of this Court which may defeat proper investigation to decline bail to the applicant". 8. The above observation are more germane while considering an application for post-arrest bail. Consideration which should weigh with the Court while dealing with a request for anticipatory bail need not be the same as for an application to release on bail after arrest. At any rate learned Single Judge ought not to have side-stepped the apprehension expressed by the CBI (that respondent would influences the witness) as one which can be made against all accused person in all cases. The apprehension was quite reasonable when considering the high position which the respondent held and in the nature of accusation relating to a period during 6. The apprehension was quite reasonable when considering the high position which the respondent held and in the nature of accusation relating to a period during 6. IT is also submitted by the learned Additional Advocate General that the nature of the injuries are grave and the injured has been beaten up mercilessly resulting in multiple injuries. It is also submitted that the accused were also not co-operating with the investigation of the case. The allegations of the petitioners that the injured is a part of mafia indulging in illegal mining etc. and when they tried to stop them, there was a free fight between the parties and the disputes pending with respect to the control of local 'Shiv' temple are not substantiated by the material on record. It is these factors which are to be considered. As held by the Supreme Court that liberty has to be upheld and cannot be curtailed or circumscribed except under circumstances which require detention of an individual in police custody. In the present case, what I find is that the gravity of the offence is writ large in the manner in which the complainant has been savaged and beaten up. Prima facie from the record I am unable to find any factor pointing towards the false implication of the bail petitioners. I also find from the records submitted by the police that the accused have not suffered injury of the nature which would belie the fact that it was the complainant, who were responsible for the assault. At this stage, without considering anything more on the merits of the case, I do not find any merit in these petitions which are accordingly dismissed. 7. IT will be open to the petitioners to apply for regular bail in accordance with law. Records of the police be handed over to the Investigating Officer forthwith.