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Himachal Pradesh High Court · body

2014 DIGILAW 1894 (HP)

Safi Mohammed S/o Babu Khan v. State of H. P.

2014-12-12

P.S.RANA

body2014
JUDGMENT : P.S. RANA, J. 1. Present bail application is filed under Section 438 of the Code of Criminal Procedure 1973 for grant of anticipatory bail in connection with case FIR No. 125 of 2014 dated 19.9.2014 registered under Section 307 IPC and 25- 54-59 of Arms Act in Police Station Nadaun District Hamirpur Himachal Pradesh. 2. It is pleaded that complaint has been filed just to harass and humiliate the applicant and applicant does not own any gun and even family members of applicant also do not own any gun. It is pleaded that applicant is innocent and is not connected with any criminal offence. It is pleaded that in fact applicant is victim of enmity between the complainant and Subhash Chand. It is pleaded that applicant will join the investigation of case and further pleaded that applicant will not tamper with prosecution evidence and will abide by all terms and conditions imposed by Court. Prayer for acceptance of bail application is sought. 3. Per contra police report filed. As per police report case under Section 307 IPC and under Section 25-54-59 of Arms Act is registered against the applicant in P.S. Nadaun vide FIR No. 125 of 2014 dated 19.9.2014. There is recital in police report that Smt. Kamlesh Kumari has two sons and one daughter. There is further recital in police report that daughter of complainant Kamlesh Kumari stood married and her two sons are bachelor. There is further recital in police report that elder son of complainant namely Kamlesh Kumari is posted as Panchayat Secretary at Jolsappad and younger son of complainant namely Kamelsh Kumari is driver by profession. There is further recital in police report that on dated 18.9.2014 at 5 PM Susheel Kumar telephoned complainant Kamlesh Kumari that he would come to the house and he also requested to prepare the meal. There is further recital in police report that at 11 PM again telephone of Susheel Kumar came and complainant inquired about whereabouts of Susheel Kumar, but he could not reply properly. There is further recital in police report that thereafter complainant and her son Manoj Kumar went to a well which was situated nearby the path and thereafter complainant saw that Susheel Kumar was fell upon the path and blood was oozing out from the mouth of Susheel Kumar. There is further recital in police report that thereafter complainant and her son Manoj Kumar went to a well which was situated nearby the path and thereafter complainant saw that Susheel Kumar was fell upon the path and blood was oozing out from the mouth of Susheel Kumar. There is further recital in police report that thereafter injured Susheel Kumar was brought to Hamirpur for his medical treatment and thereafter injured was referred to Medical College Tanda. There is further recital in police report that thereafter CT scan of complainant was conducted and as per CT scan report injured had sustained injury from the gun upon his mouth. There is also recital in police report that thereafter injured was referred to IGMC and case was registered under Section 307 IPC and under Sections 25-54-59 of Arms Act and matter was investigated. There is also recital in police report that during investigation site plan was prepared and blood clotted earth and sample of blood were took into possession vide seizure memo and statements of witnesses under Section 161 Cr.P.C. recorded. There is recital in police report that injured was operated and injured disclosed the name of accused persons. There is further recital in police report that injured is under treatment in PGI Chandigarh. Prayer for rejection of bail application is sought. 4. Court heard learned Advocate appearing on behalf of the applicant and learned Additional Advocate General appearing on behalf of the State and also perused the record. 5. Following points arise for determination in this bail application:- 1. Whether anticipatory bail application filed under Section 438 Cr.P.C. is liable to be accepted as mentioned in memorandum of grounds of anticipatory bail application? 2. Final Order. Findings upon Point No.1 6. Submission of learned Advocate appearing on behalf of applicant that applicant is innocent and applicant did not commit any criminal offence cannot be decided at this stage. Same fact will be decided when the case shall be disposed of on merits after giving due opportunity to both the parties to lead evidence in support of their case. 7. Another submission of learned Advocate appearing on behalf of the applicant that applicant is victim of enmity between the complainant and Subhash Chand and on this ground anticipatory bail application be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. 7. Another submission of learned Advocate appearing on behalf of the applicant that applicant is victim of enmity between the complainant and Subhash Chand and on this ground anticipatory bail application be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. The fact whether complaint has been filed due to enmity or not cannot be decided at this stage. Same fact will be decided when the case shall be disposed of on merits after giving due opportunity to both the parties to lead evidence in support of their case. 8. Another submission of learned Advocate appearing on behalf of the applicant that present complaint has been filed due to ill-will against the applicant and his family members and on this ground anticipatory bail application filed by applicant be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. The fact whether the complaint has been filed due to ill-will cannot be decided at this stage. Same fact will be decided when the case shall be disposed of on merits after giving due opportunity to both the parties to lead evidence in support of their case. 9. Another submission of learned Advocate appearing on behalf of the applicant that applicant will not tamper with prosecution evidence and will abide by all terms and conditions imposed by Court and on this ground anticipatory bail application filed by applicant be allowed is rejected being devoid of any force for the reasons hereinafter mentioned. At the time of granting bail following factors are considered. (i) Nature and seriousness of offence (ii) The character of the evidence (iii) Circumstances which are peculiar to the accused (iv) Possibility of the presence of the accused at the trial or investigation (v) Reasonable apprehension of witnesses being tampered with (vi) The larger interests of the public or the State. See AIR 1978 SC 179 titled Gurcharan Singh and others Vs. State (Delhi Administration). Also see AIR 1962 SC 253 titled The State Vs. Captain Jagjit Singh. In present case allegations against the applicant are very grave and heinous in nature. Allegations against the applicant are that applicant attempted to murder injured namely Susheel Kumar through gun and there is prima facie evidence on record that injured had sustained injuries by way of gun fire upon his mouth and injured is still under medical treatment. In present case allegations against the applicant are very grave and heinous in nature. Allegations against the applicant are that applicant attempted to murder injured namely Susheel Kumar through gun and there is prima facie evidence on record that injured had sustained injuries by way of gun fire upon his mouth and injured is still under medical treatment. The punishment under Section 307 IPC is imprisonment for life when hurt is caused to injured person. Court is of the opinion that in view of gravity of offence punishable under Section 307 IPC it is not expedient in the ends of justice to grant anticipatory bail to applicant because investigation is at the initial stage of case. Court is of the opinion that if anticipatory bail is granted to the applicant at this stage then investigation of the case will be adversely affected. Court is also of the opinion that if anticipatory bail is granted to the applicant during the initial stage of investigation then interest of State and general public will also be adversely affected. 10. Submission of learned Additional Advocate General appearing on behalf of the State that if applicant is released on anticipatory bail at this stage then applicant will induce and threat the prosecution witness and on this ground anticipatory bail application be rejected is accepted for the reasons hereinafter mentioned. There is apprehension in the mind of Court that if applicant is release3d on bail then applicant will induce and threat the prosecution witnesses. 11. In view of gravity of offence under Section 307 IPC in which the punishment is for life imprisonment and in view of the fact that injured had sustained gun shot injuries upon his mouth and in view of the fact that injured is still as indoor patient it is held that custodial interrogation is essential in present case in the ends of justice. Point No.1 is answered in negative. Point No. 2 Final Order 12. In view of my findings upon point No. 1 anticipatory bail application filed under Section 438 Cr.P.C. is rejected. Observations made in this order will not effect the merits of case in any manner and will strictly confine for the disposal of this anticipatory bail application filed under Section 438 of Code of Criminal Procedure 1973. All pending application(s) if any also disposed of.