Delhi High Court
Ajudhia Prasad vs State on 1 October, 1996
Equivalent citations: 1996VAD(DELHI)757, 1997CRILJ693, 64(1996)DLT714, 1996(39)DRJ498
Author: N.G. Nandi
Bench: N.G. Nandi
JUDGMENT N.G. Nandi, J.
(1) This order will dispose of criminal miscellaneous applications under Section 389(1) of the Criminal Procedure Code (hereinafter referred to as 'the Code') praying for suspension of sentences and grant of bail to the appellants/ convicts in a group of 22 criminal appeals where the appellants/convicts have been convicted for the offence under Section 147 Indian Penal Code . and sentenced to suffer two years R.I. for rioting; a sentence of six months for violation of curfew order resulting into danger to human life and safety to human life and resulting into riots and also conviction under Section 436 I.P.C. and sentenced to suffer R.I. for a period of five years and a fine of Rs.5,000.00 in default R.I. for a further period of three months for destroying houses, dwelling places and all the sentences to run concurrently by the judgment dated 27th August 1996 passed by the learned Additional Sessions Judge, Delhi.
(2) The incidents giving rise to these appeals relate to the incidents of rioting on 2nd November 1984 following the assassination of late Smt.Indira Gandhi in Trilok Puri and surrounding areas in the city of Delhi.
(3) Out of 107 persons apprehended, charges against 93 accused persons were framed under Sections 188, 148, 436 read with Section 149 Indian Penal Code . on 4th December 1995 by the trial court.
(4) It is submitted by Mr.K.B.Andley, learned counsel for the appellants, that there is no iota of evidence; that mere presence at the spot is not enough; that there is no overt act attributed and proved against any of the appellants; that there is no T.I.P. held; that prosecution witnesses have not attributed any act of rioting to any of the accused persons; that the arrest is emblock; that there is no recovery of any deadly weapon and no accused was armed with any incriminating material; that it is a case of no evidence.
(5) My attention is also invited to the observations in the judgment at page 75 which reads "under these circumstances if a person alleges any special circumstance showing his absence from the site or proving that his presence on the spot was in respect of some other matter or he was not participating in the riot and he was merely a bystander,' then the onus of proof lies upon him. Section 106 of the Evidence Act shifts the onus of proof on the person who has special knowledge of the facts. If any person who claims that although riots were taking place, but he was not participating in the riots, then he has to prove those circumstances which made him to violate the curfew and come out of the house and which made him appear on the spot and consequently his arrest". It is also contended that these observations are against the settled principle of criminal jurisprudence; that it is not for the accused to disprove the allegations made against him but it would be for the prosecution to prove the guilt beyond all reasonable doubts; that there can be no presumption that the accused are the rioters and if the investigation is defective or not properly conducted, then the benefit would go to the accused and not to the prosecution.
(6) MR.BURMAN,' learned counsel for the appellants, has referred to Section 101 of the Evidence Act and contended that when the prosecution has been alleging the offences under Section 188, 148, 436 and Section 149 Indian Penal Code , it would be for the prosecution to prove all the acquisitions and bring the guilt home to the accused and it is not for the accused to disprove any allegation.
(7) It is submitted by Mr.Rajeev Awasthi, learned counsel for the appellants, that the appellants have faced trial which protracted for nearly 12 years and that the bail granted to the appellants pending the, trial has not been misused in any manner nor there is any criminal activity indulged into by any of the appellants pending the trial after getting the relief of bail.
(8) As against this, it is submitted by Mr.K.K.Sud, learned counsel for the respondent/ State that the case pertains to carnage; that the demand of public justice and the nature of incident be also taken into consideration while considering bail to the appellants/convicts pending appeal; that in the incidents from 31st October 1984 to 2nd November 1984, there were wholesale deaths; history of cases, the background, the effect on the public and the society, of these incidents be also taken into account; that there is plenty of evidence to suggest the guilt of the accused; the evidence of PW-5, PW-7, PW-8 and PW-11 has been referred to; that there is a combined inquest report for all the dead persons; that the dead bodies could not be accommodated in the mortuary and were kept in the trucks; that the police was in hand and glov with the rioters; that there was no police remand sought against any of the accused persons; that in a matter like this, there has to be departure in the matter of grant of bail pending appeal; the investigation was purposely not carried out the way in which it sought to have been.
(9) As pointed out above, the appellants/ convicts were charged for the offences under Section 188, 148, 436 read with Section 149 Indian Penal Code . and at the end of the trial the appellants have been convicted for the offences under Section 147, violation of curfew and under Section 436 I.P.G. (10) On behalf of the respondent/State, reliance is plaed in the case of Delhi Administration Vs. Tribhuvan Nath and Others, 1996 Supreme Court Cases (Crl) page: 665 wherein the Hon'ble Supreme Court held the accused guilty for the offences under Section 302/149 Indian Penal Code . and awarded the sentence of imprisonment for life. This judgment would not be of any assistance for deciding applications under Section 389(1) of the Code in the appeals filed by the appellants/ convicts challenging the conviction recorded under Sections 147, violation of curfew and under Section 436 Indian Penal Code .
(11) In the case of Babu Singh and others Vs. State of U.P. , while considering Section 389(1) of the Code, the Supreme Court, in the appeal filed by six appellants, who were acquitted by the Sessions Judge in a murder case which was an outcome of a faction fight feud between two clans in a village, who in appeal by the State against the acquittal were found guilty and convicted by the High Court and sentenced them to life imprisonment and five of the appellants had suffered sentence in some measure for 20 months and sixth was on bail, observed that these appellants were the entire male members of their family and all of them were in jail, as such their defense was likely to be jeopardised. During appeal before High Court, the State did not press for their custody. There was nothing to indicate that during the period of five years when appellants had been out of prison pending appeal before High Court, there had been any conduct on their part suggestive of disturbing the peace of the locality, threatening anyone in the village or otherwise thwarting the life of the community or the course of justice. On application by appellants for bail, during pendency of their appeal before Supreme Court; Held that subject to certain safeguards the appellants were entitled to bail. Accordingly, they were directed to be released on bail conditions.
(12) In paragraphs 8 and 9, it is observed by the Supreme Court that "PERSONALliberty, deprived when bail is refused, is too precious a value for our constitutional system recognised under Article 21 that the crucial power to negate it is a great trust exercisable, not casually but judicially, with lively concern for the cost to the individual and the community. To glamorise impressionistic orders as discretionary may, on occasions, make a litigative gamble decisive of a fundamental right. After all, personal liberty of an accused or convict is fundamental, suffering lawful eclipse only in terms of "procedure established by law. So, deprivation of personal freedom ephemeral or enduring, must be founded on the most serious consideration relevant to the welfare objectives of society specified in the Constitution."
(13) In the case of Shanti Behal Vs. State reported in 1994 (1) Chandigarh Criminal Cases page: 618, Division Bench of this High Court, while considering Section 389 of the Code in the proceedings submitted to the High Court for confirmation under Section 366 of the Code in the case of the convicts sentenced to death by trial court under Section 302 Indian Penal Code , agreeing with the Full Bench judgment of the Kerala High Court in Uthaman and others Vs. State of Kerala reported in 1983 Criminal Law Journal page: 74 held that the bail application must not be subjected to detailed examination of evidence and merits thereto. No party should feel prejudiced. Prima facie case is required for bail but it is not the same exhaustive exploration of the merits in the order itself.
(14) In the case of Uthaman and others Vs. State of Kerala (supra), the Full Bench of the Kerala High Court observed as follows:- "...AFTERreferring to the decisions of the Supreme Court in Gudatkanti Narasimhulu V. Public Prosecutor, A.P. Singh V. State of U.P., , Kashmira Singh v. State of Punjab, and Gurcharan Singh v. State. (Delhi Admn.), , the learned Judges of the Division Bench in 'Rajan v. State, 1981 Ker.LT. 285; (1981 Cr.L.J. No 206) concluded thus :
(15) It follows that in disposing of an application for bail the High Court and the Court of Sessions are obliged to consider whether there are reasonable grounds for believing that the accused has been guilty of an offence punishable with dea5th or imprisonment for life. If that be so, the identical consideration should weigh with the High Court in the matter of suspension of sentence and grant of bail after the accused is found guilty of an offence punishable with death or imprisonment for life and is convicted for such an offence, it is true that Section 389 does not specify the grounds on which suspension of sentence can be allowed. But the very fact that the Section directs that reasons should be stated before suspension is allowed shows that suspension of sentence is not to be taken as a matter of course. Considerations which should weigh with the Court in the matter of granting bail pending trial should mutates mutants apply and should not be ignored while disposing of an application for suspension of sentence after a conviction is entered. In a case where the Sessions Judge has after taking evidence entered a conviction for murder, it should not be assumed that there are no reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment for life. The presumption should be otherwise.
(16) May be in considering the possibility of the accused jumping bail the question whether there is reasonable ground to believe that the accused had committed a serious crime is relevant. It is in that view that the High Court takes notice of this circumstance under Section 439(1) of the Code. if either because the evidence is so meagre that the accused is not likely to take the risk of jumping bail anticipating conviction, in appeal or there are other reasons why on the facts of a case the court could form the opinion that the accused would not jump bail if released then bail may be granted unless it be that the court may have reason to believe that the release of the accused may be of danger to others or to himself or he may cause self- effacement. ....Merely because the appeal is against a conviction there should not be a presumption that the accused has committed the offence as that would be to foreclose on the plea of the accused that on that materials available there is no justification to refuse bail. Inasmuch as the learned Judges of the Division Bench have categorically indicated that a presumption of existence of reasonable grounds for believing that the accused has been guilty of an offence punishable with death or imprisonment would arise by reason of a conviction, we must respectfully disagree. That is not a correct statement of the law. To that extent the dictum laid down in the Division Bench decision requires to be read as modified.
(17) The respondent/State has relied on the judgment of Allahabad High Court in case Bhola and others Vs. State reported in 1974 Criminal Law Journal page: 1318. That was a case of robbery and the Allahabad High Court observed that "dacoity being an economic gain, to the actor and is, or is likely to be carried on as an occupation to earn a living and accumulate wealth. It is not an offence which comes to an end on being committed once. It would not for these reasons be appropriate unless exonerating circumstances exist, to grant bail in cases of dacoity. Bail in such a case can, therefore, be granted only if a goods prima facie case on merits is made out." In my opinion, this decision can have no application on its own facts.
(18) Reliance is also placed on the decision in the case of K.Gopal Reddy Vs. State of Andhra Pradesh, wherein it is held that if on appreciation of evidence two view of evidence are possible and the trial court taking plausible view, the inference by the High Court merely for "substantial and compelling reasons" does not prevail. In my opinion, this decision cannot render any assistance as far as the point at hand is concerned.
(19) In the case of Harbhajan Singh Vs. State of Punjab, 1997 Criminal Law Journal page: 1424 (Punjab & Haryana High Court), a Division Bench of the said High Court, while considering Section 389 of the Criminal Procedure Code in the appeal, where all the convicts were acquitted of the charge under Section 302 read with Section 149 Indian Penal Code . but were held guilty under Sections 364, 149 Indian Penal Code . and two petitioners along with three co-accused stand sentenced to seven years R.I. each on the ground of their relatively tender age but the remaining three convicts were sentenced to undergo life imprisonment, held that the administration of justice is a matter of substance and not merely one of academics. It would afford scant satisfaction to the accused if after serving their full or substantial portion of their jail sentence, their appeal succeeds and they are merely acquitted of the charge. This factor cannot be ignored, hence the accused are entitled to the concession of bail.
(20) Above is the position of law as regards the suspension of sentence under Section 389(1) of the Code and grant of bail pending the appeal against the conviction. I have perused the record of the trial court, especially the evidence of the prosecution witnesses and the judgment recording conviction of the appellants/convicts for the offences under Sections 147, violation of curfew and under Section 436 Indian Penal Code .
(21) Considering the facts and the circumstances and the evidence for the present limited purpose, I am inclined to grant these applications under Section 389(1) of the Code, suspend the substantive sentences and admit the appellants/convicts to bail pending the appeal.
(22) In the result, the applications are granted. The substantive sentence is suspended. The appellants/convicts are admitted to bail pending the appeal. On each of the appellants/ convicts furnishing surety for the amount of Rs.10,000.00 and a personal bond in the like sum to the satisfaction of the trial court, such of the appellants/convicts be released on bail pending the appeal.