Himachal Pradesh High Court
Usha Devi & Others vs State Of Himachal Pradesh on 10 April, 2017
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. MP(M) No. 385 of 2017 Decided on: 10th April, 2017 .
Usha Devi & others ....Petitioners Versus State of Himachal Pradesh ...Respondent Coram of The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 O. For the petitioners: Mr. Imran Khan, Advocate.
For the respondent:
rt Mr. Virender Kumar Verma, Additional Advocate General, with Mr. Rajat Chauhan, Law Officer.
For the complainant: Mr. Angrez Kapoor, Advocate. ______________________________________________________________________ Chander Bhusan Barowalia, Judge. (oral).
The present bail application has been maintained by the petitioners under Section 438 of the Code of Criminal Procedure for releasing them on bail, in the event of their arrest, in case FIR No. 37 of2017, dated 08.03.2017, registered under Sections 147, 148, 149, 307, 323, 451, 506 of Indian Penal Code, 1860 (for short "IPC"), registered at Police Station Baijnath, District Kangra, H.P.
2. As per the learned counsel for the petitioners, the petitioners are innocent and have been falsely implicated in the present 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 15/04/2017 22:08:09 :::HCHP 2case. The petitioners are not in a position to tamper with the prosecution evidence and flee from justice, thus they may be released on bail.
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3. Police report stands filed. As per the prosecution story, on 08.03.2017, complainants Saji Devi and Jeet Kumar, moved a complaint under Section 156(3) Cr.P.C. before the learned Judicial Magistrate 1st Class, Baijnath, alleging that on 27.01.2014 when the of construction work of their house was going on the petitioners came there and hurled abuses, manhandled and also threatened them with dire consequences. It is further alleged that petitioner Maansari Devi rt was armed with danda and attacked Saji Devi with the same and other petitioners gave kick and fist blows to the complainants. The petitioners completely demolished the newly raised construction.
Petitioner Veena Devi snatched the mobile phone of the complainant No. 2. The matter was reported to the police and the police conducted the investigation, however, charge sheet was filed only under Sections 107, 150, 145 Cr.P.C., which was the result of the oblique motive of the investigating agency. Thereafter, the police registered the present FIR and investigated the matter. Statements of the witnesses under Section 161 Cr.P.C. were recorded. During the investigation, the lost mobile could not be traced. Recoveries were effected and all the codal formalities were completed. As per the prosecution, there is every likelihood that the petitioners may threaten the witnesses, in case they ::: Downloaded on - 15/04/2017 22:08:09 :::HCHP 3 are enlarged on bail. The prosecution prayed for dismissal of the bail application of the petitioners.
4. I have heard the learned counsel for the petitioners, .
learned Additional Advocate General for the State, learned counsel for the complainant and have gone through the record, including the police report, carefully.
5. The learned counsel for the petitioners has argued that the of petitioners are innocent and have been falsely implicated in this case.
He has further argued that the petitioners are not in a position to tamper with the rt prosecution evidence and flee from justice.
Conversely, the learned counsel for the complainants has argued that the petitioners have committed a serious crime and their bail application may be dismissed. He has relied upon the following judicial pronouncements:
1. State of Maharashtra vs. Balram Bama Patil and Others, 1983 Criminal Law Journal, 331;
2. R. Prakash vs. State of Karnataka, 2004 Criminal Law Journal 1391;
3. Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, 2011 Criminal Law Journal 3905; &
4. Jai Prakash Singh vs. State of Bihar & another, 2012 Criminal Law Journal 2101.::: Downloaded on - 15/04/2017 22:08:09 :::HCHP 4
Learned Additional Advocate General has argued that the petitioners may tamper with the prosecution evidence. He has further argued that taking into consideration the seriousness of the crime, the bail .
application of the petitioners may be dismissed. In rebuttal, the learned counsel for the petitioners has argued that the complainants have procured the MLCs in connivance with the doctor and in fact they did not receive any injury. Lastly, he has argued that the petitioners of are innocent and their bail application may be allowed.
6. At the very outset, I would like to deal with the judgments relied upon by the learned counsel for the complainants. In State of rt Maharashtra vs. Balram Bama Patil and Others, 1983 Criminal Law Journal, 331, the Hon'ble Supreme Court has held as under vide para 9 of the judgment:
"9. Shri Rana appearing for the State strenuously contended that the High Court has committed a grave error in holding that the offence under Section 307, I.P.C. was not made out merely because the injuries inflicted on the witnesses were in the nature of a simple hurt and in these circumstances it is not possible to hold any of the accused persons guilty in respect of that offence. We find considerable force in this contention. A bare perusal of Section 307, I.P.C. would show that the reasons given by the High Court for acquitting the accused of the offence under Section 307 wee not tenable. Section 307, I.P.C. reads:
"Whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall ::: Downloaded on - 15/04/2017 22:08:09 :::HCHP 5 be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to find; and if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such .
punishment as is hereinbefore mentioned."
To justify a conviction under this section it is not essential that bodily injury capable of causing death should have been inflicted.
Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the of intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The rt section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What to Court has to see is whether the act, irrespective of its result, was done with the intention of knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."
The judgment referred to above is an expression of opinion while finally deciding the criminal appeal, however, in the present case this Court is only dealing with a petition filed by the petitioners under Section 438 ::: Downloaded on - 15/04/2017 22:08:09 :::HCHP 6 Cr.P.C. seeking pre-arrest bail, therefore, at this Stage this Court cannot touch the merits of case. Furthermore, at this nascent stage, the record does not demonstrate that the petitioners were having an .
intention to kill the complainant, thus it cannot be concluded that petitioners were having an intention to kill the complainant, so the judgment (supra) is not applicable to the facts of the present case.
7. The learned counsel for the complainant has further relied of upon the judgment of Hon'ble Supreme Court rendered in R. Prakash vs. State of Karnataka, 2004 Criminal Law Journal 1391, wherein vide para 9 of the judgment it has been held as under:
rt "9. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof. It is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in some cases, be ascertained without any reference at all to actual wounds. The Sections make a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section.
Therefore, it is not correct to acquit an accused of the charge under Section 307, IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt."
::: Downloaded on - 15/04/2017 22:08:09 :::HCHP 7Again, the judgment (supra) is an expression of opinion while deciding a criminal appeal, however, this Court is not sitting as an appellate Court in the case in hand. Moreover, this Court cannot at all go into .
the merits of the case at this stage, thus the judgment (supra) is also not applicable to the facts of the present case.
8. The learned counsel for the complainant has placed reliance upon the judgment of Hon'ble Supreme Court rendered in of Siddharam Satlingappa Mhetre vs. State of Maharashtra and others, 2011 Criminal Law Journal 3905, wherein vide para 122of the judgment it has been observed as under:
rt "122 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. Whether 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 ::: Downloaded on - 15/04/2017 22:08:09 :::HCHP 8 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 of concern;
viii. While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors rt 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 genuinness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
Certainly, the above parameters have been enumerated by the Hon'ble Supreme Court in the judgment (supra), however, on an overall consideration of the present case and in view of the fact that this Court deems it proper to grant bail to the petitioners under specific ::: Downloaded on - 15/04/2017 22:08:09 :::HCHP 9 conditions and the fact that the petitioners are neither likely to tamper with the prosecution evidence nor they are likely to flee from justice, the judgment (supra) is not applicable to the facts of the present case.
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Furthermore, in the opinion of this Court, in case the petitioners are enlarged on pre-arrest bail, there will not be any larger impact on the society and there is no likelihood that they may affect fair investigation of the case.
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9. Lastly, the learned counsel for the complainant has relied upon the judgment of Hon'ble Supreme Court rendered in Jai Prakash Singh vs. State of Bihar & another, 2012 Criminal Law rt Journal 2101, wherein vide para 13 of the judgment it has been held as under:
"13. There is no substantial difference between Sections 438 and 439, Cr.P.C. so far as appreciation of the case as to whether or not a bail is to be granted, is concerned. However, neither anticipatory bail nor regular bail can be granted as a mater of rule. The anticipatory bail being an extraordinary privilege should be granted only in exceptional cases. The judicial discretion conferred upon the court has to be properly exercised after proper application of mind to decide whether it is a fit case for grant of anticipatory bail."
In the present case, after exhaustively going through the police record and police report, this Court finds that the present is a fit case where the judicial discretion to admit the petitioners on bail is required to be ::: Downloaded on - 15/04/2017 22:08:09 :::HCHP 10 exercised in their favour, therefore, the judgment (supra) is not applicable to the facts of the present case.
10. After thoroughly examining the law as cited by the learned .
counsel for the complainant and the available records, at this stage, taking into consideration the facts that the petitioners are not in a position to tamper with the prosecution evidence and flee from justice as also the fact that no recovery is to be effected by the police, the of present is a fit case where the judicial discretion to admit the petitioners on bail, in the event of their arrest, is required to be exercised in their favour. Under these circumstances, it is ordered that rt the petitioners be released on bail, in the event of their arrest, in case FIR No. 37 of2017, dated 08.03.2017, registered under Sections 147, 148, 149, 307, 323, 451, 506 IPC, registered at Police Station Baijnath, District Kangra, H.P., on their furnishing personal bond to the tune of `10,000/- (rupees ten thousand only) each with one surety each in the like amount to the satisfaction of Investigating Officer. The bail is granted subject to the following conditions:
(i) That the petitioners will join investigation of the case as and when called for by the Investigating Officer in accordance with law.
(ii) That the petitioners will not leave India without prior permission of the Court.
(iii) That the petitioners will not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so ::: Downloaded on - 15/04/2017 22:08:09 :::HCHP 11 as to dissuade him/her from disclosing such facts to the Investigating Officer or Court.
11. In view of the above, the petition is disposed of.
Copy dasti.
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(Chander Bhusan Barowalia)
10th April, 2017 Judge
(virender)
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