Rajasthan High Court - Jaipur
Prem Prakash Mirdha vs State Of Rajasthan on 17 November, 1988
Equivalent citations: 1988WLN(UC)235
JUDGMENT Jas Raj Chopra, J.
1. These two bail applications, one filed by Shri Prem Prakash and the other filed by Shri Kamal Kihore arise out of the same Cr. Case bearing No. 1,63/88 State v. Prem Prakash etc. registered on 12-9-1988 at 12.30 a.m. on the report of one Phaglu Ram who claims himself to be the president of the Truk Union Office of Bilara branch, Bilara. It is alleged against the acccused persons that they came in two jeeps, along with the five persons, to the branch office of the Bilara Truck Union situated in Bilara. Three of them, i.e., Prem Prakash Mirdha, Umaid Singh Khoja and Ishak Khan were armed with pistols and the remaining accused-persons were armed with rifles and guns. It is alleged that they belong the to Borunda Truck Union which has a business rivalry with the Bilara Truck Union. It is alleged that the incident took place some where between 12 and 12.30 a.m. in the night intervening between 11th and 12th of September, 1988. As soon as, these persons came in two jeeps, they alighted from the jeeps and challenged the persons of the Bilara Truck Union and started firing. It is alleged that one Umaid Singh who was armed with a pistol, fired at Chotha Ram by which he died at the spot and the remaining accused persons fired from their weapons indiscriminately injuring Birbal and Narain Singh and glass panes of the office of the Bilara Truck Union got damaged. It has, therefore, been alleged that these persons cojointly attacked the Union office and, therefore, they are responsible for the entire crime.
2. I have heard Mr. M.C. Bhandari, Mr. M.M. Singhvi, learned Counsel appearing for the accused-petitioners as also Mr. S.S. Byas learned Public Prosecutor and Shri N.K. Bohra learned Counsel for the complainant at length. Actually, the case was argued for three days and detailed arguments were advanced on both the sides. It was contended by Mr. M.C. Bhandari that the FIR which has been lodged by Shri Phaglu Ram is a piece of connection. Actually, it is the accused party which is aggrieved because they have been attacked while proceeding in a convey by the side the of Bilara Truck Union Office. 20 to 22 trucks came from Borunda side and wanted to cross Bilara by the National High-way route but the Bilara Union did not allow them to pass. They were laden with property worth lacs. So there was no occasion for them to pick-up a quarrel with the Union people of the Bilara Truck Union. Actually, it was Bilara Union people who fired at their trucks, damaged their front glasses and tyre of one of the trucks carrying from Gujarat was hit by the fire made by Bilara Union people and got burst and that truck had to lie there for three days. They rushed their trucks from the Chunginaka which is situated near the Bilara Union Office on hearing the sound of whistle blown from the Union Office but inspite of the fact that they speeded up their trucks, the attack was made on their convoy and damage was caused to them. Mr. Bhandari further submitted that actually, it was the Bilara Union people who have fired from their branch office which must have hit Shri Chotha Ram and so as per him, he has been killed because of the fire made by their own people and not by fire alleged to have been made from these trucks which were only trying to pass the Bilara Truck Union Office as early as possible. He has further submitted that the matter did not end there. These trucks were followed and attacked between Kharia Mithapur and Jaitaran and damage was caused to the trucks even there. It is submitted by him that earlier to this occasion also, these Union people did not allow the trucks to pass on the National High Way and several reports have been lodged by the Truck-operators or their drivers from whom ransom was recovered on account of the fact that they wanted to pass by the National highway which passes through Blara town which area was considered to be in the domain of the Bilara Truck Union. It was submitted by him that a wire was sent to the authorities intimating the details of the occurrence that has taken place with the convoy of the Borunda Truck Union that passed by that way on that day. It was also submitted by him that the Borunda Truck Union is an old union and no trouble was there till this branch office of the truck union was opened at Bilara. Before 15-8-1988, the trucks used to pass peacefully on that road but after this office has been opened, this trouble started brewing. So much so, the Borunda Truck Union requested the D G. of Police to provide protection and instructions had to be flashed out by the DGP to the Dy. Inspector General of Police and the S.P. Jodhpur to provide police protection and the S.P. in turn had to instruct the Bilara Police to provide police-protection to the trucks which wanted to pass on the national high way near Bilara town. On that day, due to the visit of the Chief Minister at Jodhpur, adequate police force was not available in the Thana and, therefore, this incident took place. According to Mr. Bhandari, this is a limit to the lawlessness prevailing in that area that trucks using the national high way have to seek police protection to pass on road. Mr. Bhandari further submitted that Shri Premprakash Mirdha does not have his own truck and so there was no occasion for him to come with this convoy and, therefore, this case has been falsely initiated against his client. According to him, even the Investigating Agency has found that four out of the seven persons who are alleged to have taken part in this occurrence were not there or have not participated in this incident and, therefore, no reliance can be placed on this First Information Report.
3. Mr. M.M. Singhvi appearing for the accused petitioner has submitted that his client be enlarged on bail because there is no allegation against him that he has caused any injury to any body. The injuries that have been caused to the other two injured persons are by blunt weapon and not by a fire arm. He has submitted that the Borunda Truck Union was engaged in normal commercial or economic activity of sending trucks loaded with lime without any trouble till this branch of the Union was opened at Bilara. The trouble only arose after the truck Union branch office was opened at Bilara. Even on that day, the convoy stopped near the octroi out post and they wanted to deposit the octroi and have actually obtained one receipt but by that time shouting and whistling started from the premises of the Truck Union Office of Bilara and, therefore, they had no option but to speed up their trucks to pass by that office and in doing so, they could not have formed a common object to attack the Union office of Bilara. There was no time available to them to consult each other. Their only anxiety at that time was to some how cross Bilara safely but the worst happened and their convoy was attacked by the Bilara Truck Union. He submitted one receipt for perusal of the Court which was issued by the octroi post and on its strength, he has tried to canvass before the Court that the trucks were passing on that road in the regular and normal way. They were ready to pay the octroi but they had to rush without paying the full octroi charges because they feared attack on their convoy from the Union people of Bilara. Thus, in these circumstances, they had no opportunity to form any unlawful assembly to attack the Bilara Union Office. It was further submitted by him that ransom was being recovered from the truck operators who were using the high way passing through Bilara town and he has produced for the perusal of the Court one receipt in which Rs. 501/- have been recovered from the truck driver forcibly mentioning therein that this amount has been given by the truck operator to the Union as help It was further contended by him that on the back of the receipt, it has been mentioned that this receipt will be valid only upto a particular period meaning thereby that this help which has been rendered to the Union will be valid upto a particular period and thereafter again ransom money will have to be paid. He has also submitted that in this case, when the complainant side found that four out of the seven persons mentioned in the FIR have not taken part in the occurrence, they increased the numbers 12 to 15. He has further submitted that no arm has been recovered from his client and, therefore, no question arises of his taking part in the firing. More over, as per him the deceased was not availed by the two accused petitioners and the injuries of other two accused persons are simple in nature and have not been caused by fire arm and so even on that ground that two accused petitioners deserve to be released on bail.
4. He also submitted that when the wire was sent to the Police Station informing that the trucks passing by the Bilara Union Office have been fired-at, it was the duty of the police to nave enquired into the matter as was done by them, when they received the telephone from the Union people of Bilara. Mr. Rajendra Choudhary has submitted that the FIR of the case has been sent to the Magistrate after 36 hours and this delay is deliberate.
5. Mr. S.S. Vyas, appearing for the State has submitted that the names of these two accused-petitioners have been mentioned in the FIR. All of them came armed from a distance of about 60 kilometers which clearly shows that they formed a common intention to commit such an offence which may result in death of certain persons because they came armed with fire arms. He has further submitted that in such matters when the case is at the investigation stage and the application of Section 149 is clearly made out individual overt act, should not be looked into and the matter should be examined from this point of view as to whether these 2 accused were party to the common object that was formed by the assembly of those 7 persons and whether they actually participated in the crime. He has further submitted that empties were found outside the gate of the Union Office which clearly shows that the fire was made from outside the Union Office and it was because of that, that Chotharam has died and two other persons have received fire arm injuries. The matter did not end there. When this convoy proceeded further towards Jaitaran, they spotted two jeeps coming from Jaitaran side and they actually damaged and smashed them near Jaitaran. A case bearing No. 164/88 has been registered against the accused persons in respect of this incident also. As per him the subsequent conduct of the accused persons is also relevant and may furnish a clue to the formation of a common object that was entertained by the assembly that was formed by the accused persons. He has submitted that there is no substance in the allegation that firing was made from the branch office of the Bilara Union because till a case was registered on the complaint of the accused persons bearing CR No. 166/88. The presence of the truck lying infront of the Bilara union office was noticed by the Investigating Agency as its existence does not find mention in any of the documents that were preferred by the police while investigating case No. 163 of 1988. Even the statements of Nakedars and octroi post persons have been recorded after the cross case was registered. He has also submitted that till 12.35 Phaglu Ram was there at Bilara because he was examined at Bilara and he could not have been there at Kharia Mithapur in the party alleged to have attacked trucks of the accused side. He has also submitted that the alleged amount that was paid by a truck owner as help to the Bilara Union Branch Office might have paid as a member of that truck Union. It was also submitted by him that the mention of the fact of firing in the telegram which was given by the opposite party, amounts to an admission in their own favour and so they cannot take advantage of their own admission. It was also submitted by him that even if money was extorted by the Bilara Union people from the truck operators passing on that route, complaints to that effect have been made by them and they are under investigation by the police but they cannot be allowed to take law in their own hands and, therefore, they deserve no sympathy. According to him, the other persons who have been released on bail, their case is distinguishable from these accused persons on the ground that their names do not appear in the FIR and, therefore, the case of Virendra Kumar against whom it is alleged that he was holding the pistol and who has been bailed out under orders of the learned Sessions Judge, Jodhpur, is distinguishable from that of persons who are named in the FIR. It was also submitted by him that some of the accused persons have taken the plea of alibi but it is a very weak piece of evidence and its veracity may be scrutinized at the time of the trial. This is not the stage to consider it. It was submitted by Mr. Vyas that the identity of the tyre which was produced by the opposite party has yet to be established that is as to whether it belongs to the truck which was found lying near the Bilara Union Office or not. He has further submitted that the late sending of the FIR bearing No. 163/88 to the Magistrate does not affect the case on merits because a second FIR about the incident which took place at 4 a.m. bearing No. 164/88 was registered there after and so the FIR bearing No. 163/88 could not have been concocted.
6. Mr. N.K. Bohra, appearing for the complainant has submitted that Bilara Union Office has also filed five FIRs against the Borunda Union. The Bilara Union has 15 members, 14 of whom Bishnois and one other person is Narain Singh and all those persons have been entangled in the FIRs that have been filed by the Borunda Truck Union. According to him, the accused persons came with these trucks with a criminal intention because they came armed and so they could have committed any offence including murder. He has drawn my attention to two authorities of their Lordships of the Supreme Court in Which certain principles have been laid down as regards grant of bail in criminal cases. These authorities are as under: [1] 1978 Cr.LR (SC) 137 Para-21, Gurcharan v. State; [2] 1987 AIR (SC) 1613, Shahzad Hasan Khan v. Ishtiaq Hasan Khan and Anr.
7. I have considered the rival submissions made at the bar and have critically gone through the record of all the three cases i.e. Cr. Case No. 163/ 88, No. 164/88 and No. 165/88. I have also gone through the FIRs submitted on both the sides and the other documents that have been filed in the case as also the copies of the bail orders that have been given by the learned Sessions Judge, Jodhpur as also the wireless message that was issued by the Superintendent of Police to the SHO Bilara and the Register of Rapat-Rojnamcha of the Bilara Police Station from 1st of September to 11th of September, 1988. This is not the stage to consider in detail or scrutinize the rival submissions made at the bar because that may result in expression of certain opinions or may result in recording of certain observations which may adversely affect the trial of the case. How ever, I may observe at this stage that the cross FIRs submitted by both the parties make a dismal and painful reading. It appears that these truck unions normally formed with economic goals and to organise and administer trade union activities have acquired criminal over-tones. It further appears as if they have formed their own Government within the Government and have established such centres of power which are guided by their own rules of conduct unmindful of the fact that in this country we are governed by the rule of law and not by the rule of thumb and this is a very sad state of affairs which must be looked into and remedied by the State Administration. It is unfortunate and pitiable that a person engaged in normal economic activity, which is his basic right, has to pay ransom or seek police protection even to pass on a national high way.
8. Be that as it may, without expressing any opinion about the merits of the case and after considering the arguments advanced by both the parties and having critically gone through the record of the case, I am inclined to accept the bail application filed by accused petitioners Prem Prakash Mirdha and Kamal Kishore and order that if they furnish a personal bond in the sum of Rs. 10,000/- together with two sureties each in the sum of Rs. 5000/- to the satisfaction of learned MJM, Bilara, they be released on bail.