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Himachal Pradesh High Court · body

2014 DIGILAW 53 (HP)

Devinder Kumar v. State of H. P.

2014-01-08

SANJAY KAROL

body2014
JUDGMENT Sanjay Karol, Judge In this petition, filed under the provisions of Section 439 of the Code of Criminal Procedure, petitioner Devinder Kumar (hereinafter referred to as the accused) is seeking regular bail, in connection with FIR No.103 of 2013, dated 12.5.2013, registered at Police Station, Balh, District, Mandi, Himachal Pradesh, under the provisions of Sections 302, 341, 323 of the Indian Penal Code. Accused stands arrested on 30.6.2013. 2. Shri Muni Lal, father of deceased Virender, in the night intervening 11.5.2013 and 12.5.2013, got his statement recorded with the police at Camp at PGI, Chandigarh, to the effect that accused Devinder Kumar, with a deadly weapon, assaulted his son Virender in the night intervening 7.5.2013 and 8.5.2013, as a result of which his son sustained grievous injuries. FIR in question was registered on the basis of this statement. Unfortunately, Virender expired in the hospital at Chandigarh on 13.5.1013. 3. I have perused the status report and the record produced by ASI Shri Saheb Singh, pertaining to FIR No.99 of 2013, dated 8.5.2013, registered under the provisions of Sections 457, 380, 511 and 34 of the Indian Penal Code, against deceased Virender @ Suku, Suresh @ Chnu and Kamal @ Kaka; and FIR No.103 of 2013, dated 12.5.2013, registered under the provisions of Sections 302, 341, 323 of the Indian Penal Code, against the present accused. 4. Undisputedly, prior to registration of FIR No.103 of 2013, present accused Devinder had got FIR No.99 of 2013 registered at the very same Police Station, naming, amongst others, deceased Virender as an accused. 5. Common fact emerging from perusal of both these FIRs is that Virender (referred to as deceased) was present in the house of accused Devinder in the morning hours of 8.5.2013. 6. According to the accused, deceased alongwith his two accomplices Suresh and Kamal tried to trespass into his house at 1.00 a.m., the night intervening 7.5.2013 and 8.5.2013. Noticing that accused was awake, these persons fled away. However, between 3 a.m. and 4 a.m. they again came, trespassed into his property and committed theft of certain articles. When accused shouted, witnesses S/Shri Man Mohan, Kapil Sen and Sarwan Kumar arrived at the spot. At that, deceased, Suresh and Kamal tried to flee away from the spot. While doing so, deceased who was driving the motorcycle fell, as a result of which he sustained injuries. When accused shouted, witnesses S/Shri Man Mohan, Kapil Sen and Sarwan Kumar arrived at the spot. At that, deceased, Suresh and Kamal tried to flee away from the spot. While doing so, deceased who was driving the motorcycle fell, as a result of which he sustained injuries. In relation to this incident, on 8.5.2013 itself, accused ldoged an FIR at Police Station, Balh, at 5.30 a.m. 7. On the other hand, investigation conducted by the police, in connection with FIR No.103 of 2013, reveals that while the deceased was trying to flee away, accused gave him beatings, as a result of which he sustained serious and grievous injuries. Incident was reported to the police by Shri Kapil Sen on phone. Head Constable Ram Singh immediately reached the spot and took the deceased to the Community Health Centre at Ratti. There the Doctor referred the deceased to the Zonal Hospital at Mandi, where he was admitted for treatment. On 9.5.2013, deceased was referred for further treatment to PGI, Chandigarh, where he was admitted same day at 11.27 p.m. On 12.5.2013 at 3 a.m., Shri Muni Lal, father of the deceased got the complaint registered. 8. Present bail petition is opposed on the ground that the accused committed murder and as such cannot be enlarged on bail. It is neither desirable nor in public interest to enlarge him on bail. 9. Law with regard to grant of bail is now well settled. The Apex Court in Siddharam Satlingappa Mhetre versus State of Maharashtra and others, (2011) 1 SCC 694 , while relying upon its decision rendered by its Constitution Bench in Gurbaksh Singh Sibbia vs. State of Punjab, (1980) 2 SCC 565 , laid down the following parameters for grant of bail:- “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. 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. (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) 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. 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 Judge concerned, 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. If a wise discretion is exercised by the Judge concerned, 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.” (Emphasis supplied) 10. The view stands reiterated by the apex Court in Sanjay Chandra versus Central Bureau of Investigation, (2012) 1 SCC 40 . 11. Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another, (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 12. It is not in dispute that in relation to the incident in question, two FIRs stand registered at the very same Police Station. Incidentally, the Investigating Officer, who initially conducted the investigation was same. 13. Perusal of record of investigation, conducted by the police so far, in relation to both the FIRs, reveals a shocking and sorry state of affairs. 14. Significantly, on the complaint of the present accused, on 8.5.2013 at 5.30 a.m., police registered FIR against the deceased. Head Constable Shri Ram Singh, in his statement, recorded under the provisions of Section 161 of the Code of Criminal Procedure, in FIR No.103 of 2013, states that same day reached the spot at 5 a.m. It is an admitted fact that Police Station, Ratti, is just at a distance of 1 km from the place of incident. Head Constable Shri Ram Singh, in his statement, recorded under the provisions of Section 161 of the Code of Criminal Procedure, in FIR No.103 of 2013, states that same day reached the spot at 5 a.m. It is an admitted fact that Police Station, Ratti, is just at a distance of 1 km from the place of incident. Now, if the deceased had sustained severe and grievous injuries, from the hands of the accused, then why is it that deceased was not immediately taken to the hospital by this police official? Deceased was admitted in the Community Health Centre, Ratti only at 7 a.m. Record is conspicuously silent as to what transpired within these two hours. 15. To make out a prima face case of murder against the present accused, police refers to and relies upon the statements of Head Constable Ram Singh and other three persons present on the spot, who allegedly witnessed the incident in question, namely Man Mohan, Kapil Sen and Sarwan Kumar. Now significantly, statements of these witnesses were recorded by HC Ram Singh, in FIR No.103 of 2003, only on 21.5.2013. He himself got his statement recorded on 17.5.2013. Why this delay is unexplainable from the record. Whereas, statements of these very spot witnesses stood recorded by the very same Police official, with respect to FIR No.99 of 2013, on 8.5.2013 itself, in which there is no disclosure about the alleged acts of criminality or complicity of the accused, in relation to assault or murder. 16. The apex Court in D.K. Basu versus State of W.B., (1997) 1 SCC 416 , laid down the following guidelines: “(1) The police personnel carrying out the arrest and handling the interrogation of the arrestee should bear accurate, visible and clear identification and name tags with their designations. The particulars of all such police personnel who handle interrogation of the arrestee must be recorded in a register. (2) That the police officer carrying out the arrest of the arrestee shall prepare a memo of arrest at the time of arrest and such memo shall be attested by at least one witness, who may be either a member of the family of the arrestee or a respectable person of the locality from where the arrest is made. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. It shall also be countersigned by the arrestee and shall contain the time and date of arrest. (3) A person who has been arrested or detained and is being held in custody in a police station or interrogation centre or other lock-up, shall be entitled to have one friend or relative or other person known to him or having interest in his welfare being informed, as soon as practicable, that he has been arrested and is being detained at the particular place, unless the attesting witness of the memo of arrest is himself such a friend or a relative of the arrestee. (4) The time, place of arrest and venue of custody of an arrestee must be notified by the police where the next friend or relative of the arrestee lives outside the district or and through the Legal Aid Organisation in the District and the police station of the area concerned telegraphically within a period of 8 to 12 hours after the arrest. (5) The person arrested must be made aware of this right to have someone informed of his arrest or detention as soon as he is put under arrest or is detained. (6) An entry must be made in the diary at the place of detention regarding the arrest of the person which shall also disclose the name of the next friend of the person who has been informed of the arrest and the names and particulars of the police officials in whose custody the arrestee is. (7) The arrestee should, where he so requests, be also examined at the time of his arrest and major and minor injuries, if any, present on his/her body, must be recorded at that time. The "Inspection Memo" must be signed both by the arrestee and the police officer effecting the arrest and its copy provided to the arrestee. (8) The arrestee should be subjected to medical examination by a trained doctor every 48 hours during his detention in custody by a doctor on the panel of approved doctors appointed by Director, Health Services of the concerned State or Union Territory, Director, Health Services should prepare such a panel for all Tehsils and Districts as well. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the (sic) Magistrate for his record. (9) Copies of all the documents including the memo of arrest, referred to above, should be sent to the (sic) Magistrate for his record. (10) The arrestee may be permitted to meet his lawyer during interrogation, though not throughout the interrogation. (11) A police control room should be provided at all district and State headquarters, where information regarding the arrest and the place of custody of the arrestee shall be communicated by the officer causing the arrest, within 12 hours of effecting the arrest and at the police control room it should be displayed on a conspicuous police board.” Deceased Virender was an accused, in relation to FIR No. 99 of 2013. In the instant case, there is nothing on record to even remotely suggest that these guidelines were followed by the Investigating Officer. 17. Record further reveals that when deceased was examined by the Doctor at Community Health Centre, Ratti, he was in a disoriented state of mind. Police states that his statement could not be recorded, as he remained unconscious thereafter. But one fact, which the police wants the Court to conveniently forget is that deceased had asked one of the witnesses, present on the spot, to make him speak with his father on the mobile phone. Deceased spoke to his father, informing him about the incident. This has come in the statement of the witnesses. Now, if father himself was aware about the incident on 8.5.2013 itself, then why is that he did not lodge any report with the police prior to 11.5.2013/12/.5.2013? If deceased was in a position to speak to his father, then why is it that police did not record his statement on the spot? It is nobody’s case that deceased became unconscious prior to police having reached the spot. If on 8.5.2013 itself, the Investigating Officer was aware of the critical condition of the deceased, then why is it that he did not register any FIR against the accused, more particularly, in view of the stand now taken by the police that deceased was recovered from his custody. 18. Significantly, in the FIR, father does not mention about any telephonic conversation having taken place between him and the deceased. He also does not state that deceased had informed him that accused had given him beating with an intent of committing murder. 18. Significantly, in the FIR, father does not mention about any telephonic conversation having taken place between him and the deceased. He also does not state that deceased had informed him that accused had given him beating with an intent of committing murder. It appears that till the time condition of deceased became critical police pursued the version of the present accused that deceased sustained injuries on account of skidding of the motorcycle. 19. So far, investigation does not answer any of the doubts raised herein above. 20. It is not the case of prosecution that during investigation, accused-petitioner has not cooperated. Accused was arrested on 30.6.2013 and his further detention is neither required nor is it desirable in public interest. Apprehension that accused might influence the witnesses, in my considered view, is not well founded or borne out from the record. Accused is not an influential and a powerful/ resourceful person, who could either exercise undue influence or intimidate/win over the witnesses. He is permanent resident of the State of Himachal Pradesh and has moveable and immoveable property within the State. Also, there is no apprehension of his fleeing away from the jurisdiction of this Court. 21. Having holistically considered the nature of offence and the relevant attending circumstances in favour of the petitioner-accused, I feel that it is a fit case in which petitioner should be enlarged on bail. It does not fall within the exceptional clause as laid down by the apex Court. 22. As such, petitioner-accused Devinder Kumar is ordered to be released on bail on his furnishing personal bond in the sum of Rs.1,00,000/- (rupees one lac) with one surety in the like amount to the satisfaction of learned 1stJudicial Magistrate Class, Mandi. It is clarified that petitioner shall not tamper with the prosecution evidence, flee away from the jurisdiction of this Court, try to influence the witnesses or in any manner act and conduct himself so as to disentitle himself from the discretionary power. Also, he shall always make himself available during trial. Learned Judicial Magistrate is directed to comply with the directions issued by the High Court, vide letter No. HHCVIG/Misc. Instructions/93-IV-7139, dated 18.3.2013. 23. 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. 24. Learned Judicial Magistrate is directed to comply with the directions issued by the High Court, vide letter No. HHCVIG/Misc. Instructions/93-IV-7139, dated 18.3.2013. 23. 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. 24. Police record, pertaining to FIR No.99 of 2013 and 103 of 2013, be returned against proper receipt. Petition stands disposed of. Copy dasti.