Onkar Chand S/O Govind Ram vs Union Territory Of Jammu & Kashmir on 23 February, 2023

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Jammu & Kashmir High Court

Onkar Chand S/O Govind Ram vs Union Territory Of Jammu & Kashmir on 23 February, 2023

1. Applicants have invoked the jurisdiction of this Court in terms of Section 439 of the Code of Criminal Procedure (hereinafter referred as „the Code') for grant of bails in their favour in case FIR No. 117/2021for commission of offences punishable u/ss 326-A/307/323/147/148/201, IPC of Police Station Billawar. It is averred, that the complainants are none else but the real brothers and other family members of applicants/accused who had a dispute with regard to piece of land wherein the complainant party want the applicants to surrender all his rights and claims over the said piece of land; that on 2nd August 2021 in the morning hours the complainant party came in the land and want to raise construction forcibly, the applicants/accused and wife of accused No. 1 namely Reva Devi came on spot and requested them not to indulge in the policy of „Might is Right‟ and stop any sort of construction or fiddling with the land till some amicable settlement is reached, but the assailant party was not ready to listen to the request of the applicants/accused and they had hardly gone few yards away from the site, when they heard some cries saying that someone has 2 B.A No. 424/2021 thrown acidor boiling oil by the assailants who have been mildly injured, people came on spot and rushed the mildly injured persons to the hospital from where some of them were referred to GMC Jammu. It is moreso averred, that complainant party is very influential and are hell bent upon to succeed in getting FIR registered against applicants/accused succeeding in their arrest and Mst. Reva Devi in false and frivolous case, that the applicants/accused are innocent have not committed any offence and filed application for grant of bail which was rejectedand only Reva Devi was granted bail by the Court Ld. Additional Sessions Judge, Kathua, vide order dated 24.11.2021.It is averred, that even for the sake of arguments the story projected by the prosecution is taken as gospel truth, even then on the facts and circumstances of the case, it is revealed that offence u/s 326-B IPC appears to have been committed instead of offence under Section 326-A which provides punishment of five years only which can extended up to seven years, therefore, bail has to be granted to the applicants, as „bail is rule‟ and „jail is exception‟, the offencesare punishable with ten years or imprisonment for life and there is no bar for grant of bail as none of the offences alleged against applicants/accused are punishable with death penalty or imprisonment for life, that applicants are in custody for the last more than one and half yearand cannot be kept for indefinite period in detention, challan has been produced in the court of law, therefore, the chances of winning over the prosecution witnesses are also not there, applicants are ready to furnish bail and personal bonds and undertake to comply conditions imposed by the court if granted bails.

2. Respondents per contra,have opposed the bails on the grounds, that FIR No. 117/2021 has been registered against applicants/accused and other co-accused namely Reva Devi, Tilak Raj, Naseer Ahmed & Sadiq Hussain for the allegations, that on 02.08.2021 when accused No. 3 Onkar Chand was raising construction unlawfully in the land S. No. 517 of village Dher Tehsil Billawar also belonging to the complainant party, all the accused persons with criminal common intention and prior concert, whereas accused No. 1 Vipul Sharma carrying a jug of acid mixed with chilly powder, accused No. 2 Reva Devi carrying iron rod in her hand, accused No. 3-Onkar Chand carrying drat in his right hand and rod in his left hand, accused 4 &5 carrying buckets filled with acid and mixed with chillyassaulted the complainant party with rods, blows, fists, while accused no. 3 Onkar Chand inflicted darat blow on the right hand of KantaDavi, accused 1,4 & 5 namely Vipil Sharma, Tilak Raj & Naseer 3 B.A No. 424/2021 Ahmed threw acid on complainant and her sister-in-law Kanta Devi, on raising noise applicant‟s husband Sham Lal and her son Mohit Gour and one Ravinder Shamra and Kanta Devi came on spot, accused 1,4 & 5 namely Vipil Sharma, Tilak Raj & Naseer Ahmed threw acid on the husband of complainant son namely Sham Lal and her son Mohit Gour whereby they got seriously injured. It is contended, that criminal acts of applicants/accused resulted in registration of FIR u/ss326-A/307/323/147/148/201, IPC, whereas,after completion of investigation charge-sheet stands filed before the court of Ld. Munsiff JMIC Billawar on 27.10.2021 which committed the challan to the court of Ld. Principal Sessions Judge Kathua, from where the same has been transferred to the court of Additional Sessions Judge Kathua for trial, offences indicted against accused persons are heinous as offence under section 326-A IPC is punishable for minimum imprisonment of ten (10) years and maximum life imprisonment, whereas other offences under section 307 RPC is also punishable to life imprisonment, none of the prosecution witnesses have been examined so far, there is every apprehension that if the applicants/accused are admitted to bail they will temper the prosecution witnesses and threaten them from deposing before court of law, and even they can go to the extent of causing more harm to them. It is moreso contended, that injured Sham Lal (husband of complainant) was a sole bread earner and an ATM security guard but due to the throwing of acid upon him he has lost his eye sight which has been badly damaged and is undergoing treatment till date, injured Mohit Gour has been thrown acid on his arm, stomach& both legs causing burn injuries and deformation on his face and body, treatment of his eyes is still going on, moreos two (2) co-accused namely Naseer Ahmed &Mohd Sadiq who are habitual offenders are absconding since the commission of crime, the offences attributed to applicants are grave in nature and therefore, bail may be refused to them.

3. Mr. K. Nirmal Kotwal, learned counsel for the applicants/accused while recapitulating the grounds urged by him in the bail application has vehemently projecting arguments, that applicants/ accused since their arrest on 04.08.2021 are lying in detention for the last more than one year and six monthson false and frivolous charges, out of total five (5) accused persons, accused Reva Devi wife of A1 Onkar Chand has been admitted to bail by the Court of Additional Sessions Judge Kautha vide order dated 24.11.2021 while applicants/ accused are languishing in jail. It is argued, that „bail is rule‟ and „jail is exception‟ the 4 B.A No. 424/2021 challan has been submitted in the court of law and there is no apprehension that accused can influence the prosecution witnesses as number of prosecution witnesses are members of the same family,denial of bail would amount to infliction of pre-trial punishment which is against the mandate of criminal jurisprudence, as every accused is presumed to be innocent till proved guilty and convicted, the injured persons in the case in hand are out of danger now and are residing in their homes, all of injured persons have not suffered grievous injuries, accused/applicant No. 1 Onkar Chand and injured Sham Lal are real brothers and due to the land dispute,instant false case has been framed against the applicants. To buttress his arguments,Mr. Kotwal has relied upon the judgments, viz;(i) Bineesh Philip Vs. State of Kerala [Bail application No. 8239/2020 decided on 14th December, 2020],(ii) 1980 SLJ 31 [Assad Ullah Khan & Ors. Versus State] (iii) AIR(SC) 830 (Sanjay Chandra- AppellantVs. CBI-Respondent),(iv) 2015 Legal Eagle (P&H) 1931 [Baljit Singh Versus State of Punjab] and (v) AIR 2020 Supreme Court 1699 [P. Chidambaram- Applellant Vs. Directorate of Enforcement-Respondent].

4. Mr. Dewakar Sharma, learned Dy. AGper contra, has vehemently opposed the bailsby projecting arguments, that upon injured Sham Lal, Mohit Gour and Sunita Devi acid has been thrown by accused party, whereby injured Sham Lal and his son Mohit Gour have received grievous injuries, their photographs (Annexure R-1 to the objections) annexed with objections depict that injured Sham Lal and Mohit Gour have received grievous injuries due to acid attack on them as a result injured Sham Lal has lost his eye sight to a greater extent as per the opinion rendered by the doctors. It is argued, that chare-sheet has been submitted in the court of law and the charges have been framed, the maximum imprisonment for offence u/s 326-A IPC is life imprisonment and minimum imprisonment ten (10) years, therefore, the offence is heinous and grave in nature and the applicants/accused do not deserve the leniency of bail, it is beaten law that at the stage of grant or refusal of bail one of the conditions to be seen is the gravity of offence and severity of the punishment, if the applicants/accused are enlarged on bail there is every possibility that they may repeat the offence and inflicted more crimes upon the complainant party. It is strenuously argued, that A1 Onkar Chand even though is real brother of injured Sham Lal, but the degree of animosity for land dispute shown by him is severe in nature, as he has gone to the extent of throwing acid upon his brother Sham Lal and has made him to suffer throughout his life for eye sight, 5 B.A No. 424/2021 the criminal acts of accused persons are so horrible/dreadful that there is every apprehension that if they are enlarged on bail, they can threaten/intimidate the prosecution witness and prejudice the prosecution case. Prayer has been made for rejection of bails.

5. I have heard learned counsel for the applicants/accused and learned Dy. AG for the respondents. I have gone through the contents of the bail application, objections filed by the respondents and scanned the record made available by the trial Court.

6. Before deciding the case in hand, I would like to enumerate the factors which should be taken in consideration while granting or refusing bail in a non- bailable case. Hon‟ble Supreme court of India in case laws titled (i) State of UP Vs. Amarmami Tripathy, [2006(8) SCC21], vide paragraph-18 and (ii) in CRIMINAL APPEAL NO. 448 OF 2021 (@ SPECIAL LEAVE PETITION (CRL.) NO. 3577 OF 2020) [SUDHA SINGH ... APPELLANT(S) VERSUS THE STATE OF UTTAR PRADESH & ANR. ... RESPONDENT(S), judgment delivered on 24.04.2021] has culled out certain factors to be taken in consideration while deciding bail application in non-bailable offences as under:-

" It is well settled that the matters to be considered in an bail application are:-

(I) whether there is any prima-facie or reasonable ground to believe that the accused has committed the offence;

(II) nature and gravity of charge;

(III) severity of the punishment in the event of conviction; (IV) danger of the accused absconding or fleeing if released on bail; (V) character, behavior, means, position and standing of the accused; (VI) likelihood of the offence being repeated;

(VII) reasonable apprehension of the witnesses being tampered with; and (VIII) danger, of-course the justice being thwarted by grant of bail.

Indeed, these guidelines are not exhaustive, nonetheless, these have to be considered while passing an order in a bail application in a non-bailable offence.

7. It is apt to reiterate here, that the offences indicted against the applicants/accused for commission of offences u/ss 326- A/307/323/147/148/201 IPC are heinous and grave in nature as offence u/s 326-A IPC is punishable up to minimum imprisonment of ten (10) years and maximum imprisonment up to life. Allegations against the applicants/accused and other co-accused namelyReva Devi, Naseer Ahmed &Sidiq Hussain are that they have thrown acid upon the complainant party namely Sunita Devi, her 6 B.A No. 424/2021 husband Sham Lal and her son Mohit Gour. Court of Additional Sessions Judge Kathua vide it‟s order dated 24th November 2021 has rejected bail application of applicants/accused whereas bail has been granted to female accused Mst. Reva Devi. Annexure R1 to the objections are the photographs pertaining to injured Sham Lal and his son Mohit Gour which prima-facie demonstrate that injured Sham Lal has suffered grievous injuries on his face, head and in chest due to acid throwing by applicants/accused, whereas his son Mohit Gour has also suffered acid burn injuries on his body. Medical reports bearing MLC Nos. 2793, 2794 & 2798 pertaining to injured Sham Lal, Mohit Gour& Sunita Devi depict that all of them have received acid burn injuries on their bodies, face, neck, chest, thighs, hands, abdomen, etc. which are grievous in nature.FSL report dated 12.01.2022 in regard to the clothes of the injured demonstrate that Sulphuric acid/Poison/Mineral acid has been detected on the clothes of the injured.

8. In view of the facts of the case in hand, there is prima-facie/reasonable ground to believe that applicants/ accused have committed the offences alleged against them. The nature and gravity of charges against applicants/accused are very serious, as offence under section 326-A IPC is punishable up to minimum imprisonment of ten (10) years and maximum imprisonment for life. The punishment provided for the offences indicted against the accused personsare severe in nature, more grave is the offence, more are the chances of accused absconding and fleeing from justice, therefore,there is every danger of the applicants/accused absconding or fleeing if enlarged on bail. Applicants/accused do not enjoy special status in the society as compared to the victim/complainant party for consideration of grant of bail in their favour. As per the settled position of law, gravity and seriousness is a relevant consideration for the purpose of grant of bail [vide 2022 Legal Eagle 1042 Supreme Court of India, Nitu Kumar Versus Gulveer & Anr]. From the scanned record, it is clearly demonstrated, that not even a single witness has been examined by the prosecution before the trail court.The complainant party including the grievously injured persons are yet to be examined by the trail court and if applicants/accused are released on bail at the stage, there is reasonable apprehension that they will threaten/intimidate the material prosecution witnesses and even can commit/inflict more crimes upon the complainant party.While granting or refusing bail in non-bailable offence a balance has to struck between right to individual liberty and interest of the 7 B.A No. 424/2021 society. It istrite law by the authoritative pronouncement by Hon‟ble Supreme Court of India in case law reported in AIR 2007 SC 415 (Rajesh Ranjan Yadav @ Pupu Yadav VS. CBI through its Director) that the interest of society outways the individual interest of a person and longer period of incarceration is not a ground for grant of bail.

9. In Bineesh Philip Vs. State of Kerala, [Bail application No. 8239/2020 decided on 14th December, 2020], relied by learned counsel for the applicants, Kerela High Court granted bail to the accused indicted for commission of offences under sections 326-A & 307 IPC knowing the fact that the accused is involved in serious offence. I have gone through the crux of the Judgment (supra) and am in respectful disagreement with a ratio of the Judgment for the reasons that Kerela High Court has not considered the conditions/parameters for grant or refusal of bail. The case law (supra) does not lay down an invariable principle of law that in every non-bailable offence bail has to be mandatorily granted. In 1980 SLJ 31 (Assad Ullah Khan & Ors. Vs. State) relied by Ld. Counsel for the applicants,High Court of Jammu & Kashmir granted bail to accused persons in rape case us/s 376 RPC namely Akram who was not alleged to have committed offence of rape and other accused „Rajab‟ who was below sixteen (16) years of age. The ratio of the judgment (supra) is distinguishable from the facts of the case in hand.In AIR 2012 (SC) 830 (Sanjay Chandra Vs. CBI) further relied by learned counsel for the applicants,Hon‟ble Supreme Court granted bail to the accused indicted for commission of offences u/ss 420-B, 468, 471 and 109 IPC r/w 13 (2) read with 13 (i) (d) of Prevention of Corruption Act, 1988. The case law (supra)also does not lay down an invariable principle of law that in every non-bailable offence bail has to be granted. Ratio of the Judgment (supra) is also distinguishable from the facts of the case in hand. In 2015 Legal Eagle (P&H) 1931 (Baljit Singh Vs. State of Punjab) relied by learned counsel for the applicants, bail was granted to accused involved in commission of offence under section 420 IPC for cheating in regard to agreement to sell. The facts of the case law (supra) are distinguishable from the present case. In AIR 2020 Supreme Court 1699 (P. Chidambaram Vs. Directorate of Enforcement) further relied by learned counsel for applicants, bail was granted incase registered by CBI against under section 120-B r/w 420 IPC r/w sections 8 & 13 (2) r/w 13(1) (d) of PC Act. In the case law (supra) Hon‟ble Supreme Court has specifically deduced the ratio of the judgment that although the basic principle is that „bail is rule‟and 8 B.A No. 424/2021 „refusal is exception‟however, while considering the same, the gravity of offence is an aspect which is required to be kept in mind by the Court. The case laws (supra) relied by the learned counsel for the applicants/accused do not lay down an invariable/mandatory principle of law that even in grave and heinous offence the bail has to be mandatorily granted. The grant of bail depends upon facts and circumstances of each case and it cannot be said that there is absolute rule that because long period of imprisonment has expired bail must necessarily be granted. The basic law of bail can be found in 1962 SC 253 (Capitan Jagjit Singh's Case) and then in the most talked about the case reported in 1978 SC 429 (GudikanitiNarasimula and others, Appellants V. Public Prosecutor, High Court of Andhra Pradesh, Respondent), on the basis of which a sacred citation usually echoes in all the courts of country, viz, "Bail or Jail" has been misunderstood and misapplied on various occasions. These Judgments even do not lay down an invariable law that it is always the bail that should be awarded by the Court hearing a bail petition in non-bailable case. I am afraid, if that were the intention of legislature, then there ought not to be two categories of offences "bailable" and "non-bailable".

10. On these considerations, and in view of the aforesaid discussion, I am of the considered opinion, that this is a fittest case where bail ought not to be granted and the applicants/accused at this stage too have failed to carve out a strong case for grant of bail in their favour. The bail application being misconceived under law, is disallowed, rejected and dismissed.

11. Disposed of alongwith connected CM(s), if any.

(Mohan Lal) Judge Jammu 23.02.2023 Vijay Whether the order is speaking? Yes/No Whether the order is reportable? Yes/No

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