Himachal Pradesh High Court
Dinesh Mehta vs State Of Himachal Pradesh on 6 July, 2015
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P(M) Nos. 814, 888, 889 and 890 of 2015.
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Judgement reserved on : 3.7.2015.
Date of decision: 6.7.2015.
1. Cr.MP(M) No. 814 of 2015.
Dinesh Mehta ......Petitioner
Vs.
State of Himachal Pradesh ...... Respondent.
2. Cr.MP(M) No. 888 of 2015.
Rakesh
r ......Petitioner
Vs.
State of Himachal Pradesh ...... Respondent.
3. Cr.MP(M) No. 889 of 2015.
Gulshan ......Petitioner
Vs.
State of Himachal Pradesh ...... Respondent.
4. Cr.MP(M) No. 890 of 2015.
Ravinder alias Ravi Mehta ......Petitioner
Vs.
State of Himachal Pradesh ...... Respondent.
Coram
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? No 1 For the petitioner (s) : Mr. C.N. Singh, Advocate, for the petitioner in Cr.MP(M) No. 814 of 2015 and Mr. Ajay Kochhar and Mr. Vivek Sharma, Advocates for the petitioners in other petitions.
For the respondent : Mr. Virender Kumar Verma and Ms. Meenakshi Sharma, Addl.
Advocate Generals with Ms. Parul Negi, Dy. Advocate General.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 15/04/2017 18:30:29 :::HCHP ...2...
SI Gulam Akhar, SHO, PS Chopal and HHC Ratti Ram No. 837, Police Station, Chopal, Distt. Shimla.
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Tarlok Singh Chauhan, Judge.
The abovementioned four bail applications have been filed for grant of regular bail in case FIR No. 14 of 2015 dated 12.3.2015, registered at Police Station, Chopal under sections 302, 147, 148, 149, 452, 364, 354, 436, 323, 325 read with section 506 IPC. r
2. The respondents after having put to notice have produced the records of the investigation and have also filed the status report.
3. The record discloses that on 11.3.2015, complainant got recorded her statement under Section 154 Cr.P.C. with ASI Partap Singh disclosing therein that she along with her husband and three children is residing in village Tuil. At about 3.00 P.M., on 11.3.2015, she along with her husband was present in her house. Meanwhile, a stone was thrown on the head of her husband, upon which, the husband told her that people are pelting stones upon them, upon which the complainant along with children got into the house. Her husband also came inside the house. The people were pelting stones on the roof of the house. They also proclaimed that if Narvir would come out, they will not spare him. Then, the accused Bantu son of Sunder Singh, Dalip son of Jalam Singh, Bhupinder son of Sh. Roop Singh, Pappu, Kaku son of Joban Dass, Rakesh son of Lachhi Ram, Sunil son of Sant Ram, Manu son of Beer Singh, Gulshan son of Lachhi Ram, Ritu son of Joban Dass, Joban Dass, Sanu son of ::: Downloaded on - 15/04/2017 18:30:29 :::HCHP ...3...
Bhupinder, Rajinder son of Balak Ram, Dinesh Mehta son of Masat Ram, Manu alias Sachin son of Rajinder entered in the house. After .
entering the house, Bhupinder son of Sh. Bhoop Singh caught hold of the complainant from her hair, Ri nku and Kaku caught hold of the complainant from her arms. Rajinder, Sunil and Pappu tore the clothes of the complainant and they have also proclaimed to molest her. Ritu was having stone in his hand and he inflicted injuries on the face of the complainant. Those persons were proclaiming to the deceased Narvir that save his wife if he can. The husband of the complainant was having a gun in his hand. He tried to save the complainant, then the persons who came there inflicted Darat blow on the head of her husband. They also snatched the gun. In that process, the bullet got fired and hit Bantu son of Sh. Sunder Singh. Thereafter, all those persons dragged the husband of the complainant out of the house along with the person who sustained the bullet injuries. Apart from the above persons, women were also present there. All of them have beaten the husband of the complainant. One Surinder Nepali had inflicted the axe blow on the husband of the complainant. They dragged the husband of the complainant towards the fields. She also got recorded the names of the accused Rama Nand son of Mahi Ram, Bantu son of Rama Nand, Yashu son of Ram Lal, Yashu son of Gian Singh, Man Singh son of Kumbia, Prince Mohan son of Man Singh, Dimple son of Man Singh, Dimple son of Ishri Nand, Virender son of Sh. Roshan Lal, Devinder son of Roshan Lal, Inder Singh son of Sh.Roshan Lal, Pankaj son of Daulat Ram, Sanjay son of Daulat Ram, Ravi son of Mangat Ram, Vishal son of ::: Downloaded on - 15/04/2017 18:30:29 :::HCHP ...4...
Sandeep, Sandeep son of Sh. Sohan Singh, Nikhil son of Sh. Sandeep, Pinku son of Bhindru, Kundan Singh son of Jalam Singh, .
Vir Singh son of Sh. Mehar Singh, Sunder Singh son of Sh. Mehar Singh. She further recorded that when her husband was dragged by the above persons, then after sometime, the accused Daleep, Pradeep, Bhupinder, Surinder Nepali, Sunil, Manoj, Rajinder came to the house of the complainant and told her that they had killed her husband and had thrown his dead body in the rivulet. They have also proclaimed that they will burn the complainant as well as her children. They also sprinkled kerosene oil on the grass and wood lying on the rear side of the house and set the same on fire. On all these allegations the complainant prayed that action be taken against them.
4. On the basis of the said statement of the complainant, the police machinery swung into motion and registered F.I.R. No. 14/2015 under Sections 302, 147, 148, 149, 452, 364, 436, 354, 323 and 506 of the Indian Penal Code.
5. The police searched for Narvir Thakur on 11/12.3.2015, but he was not found. On 12.3.2015, the spot was videographed. The other codal formalities were completed on the spot. On 12.3.2015, the dead body of Narvir was found in the jungle. The dead body was taken into possession and the same was sent for postmortem examination. On 16.3.2015 some of the bail applicants surrendered before the police. They were arrested and were medico legally examined. During the course of investigation on 19.3.2015, the accused Kundan Singh and Dalip Singh made a statement under Section 27 of the Indian Evidence Act and Kundan Singh got ::: Downloaded on - 15/04/2017 18:30:29 :::HCHP ...5...
recovered the Axe and Dalip Singh got recovered the clothes which he had worn at the time of incident.
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6. Some of the accused had earlier approached this court for grant of regular bail, but the same was declined by this court vide order dated 18.5.2015.
7. However, these petitions have now been filed claiming therein that there are changed circumstances, inasmuch as now the final report, under section 173 Cr.P.C. has been submitted to the court of competent jurisdiction and based upon the investigation conducted by the investigating agency after registration of the case, there is hardly any iota of evidence establishing the complicity of the petitioners in the commission of the offence. It is also averred that the investigation is complete and the petitioners are no more required by the police in connection of the offence.
8. It is further averred that in the final report presented after the investigation, the story as now put forth by the prosecution is different from what had earlier been stated by the complainant and the exaggeration, omission and improvements made by the complainant from time to time are themselves sufficient to fortify these submissions, as the main object of the complainant was to rope in the entire village.
9. The petitioners have in particular invited my attention to the statement of Prem Chauhan, who is the only alleged eye witness to submit that nowhere in the entire statement does he make a mention regarding the complicity of the petiti oners in the offence. ::: Downloaded on - 15/04/2017 18:30:29 :::HCHP
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10. The sheet-anchor of the arguments of the petitioners is that even as per the prosecution story, a person by the name of .
Bharat Bhushan had earlier been shot by Narvir, the deceased husband of the complainant, which in fact was the root cause of the entire episode. The petitioners claim to have taken the aforesaid Bharat Bhushan to the hospital i.e. IGMC Shimla.
I have heard the learned counsel for the parties and have also gone through the records of the case.
11. Mr. Verma, learned Additional Advocate General has raised preliminary objection regarding the maintainability of these petitions on the ground that there is no change in the circumstances. He in support of his submission has relied upon Gurcharan Singh and others versus State (Delhi Administration) (1978) 1 SCC 118, Shri Gurbaksh Singh Sibbia and others versus State of Punjab (1980) 2 SCC 565, State of Maharashtra versus Captain Buddhikota Subarao AIR 1989 SC 2292, State of Gujarat versus Salimbhai Abdulgaffar Shaikh and others (2003) 8 SCC 50, State of U.P. through CBI versus Amarmani Tripathi (2005) 8 SCC 21, Rajesh Ranjan Yadav alias Pappu Yadav versus CBI through its Director (2007) 1 SCC 70, Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, Siddharam Satlingappa Mhetre versus State of Maharashtra and others (2011) SCC 694 and Govind Sagar versus State of Himachal Pradesh, 2014 (2) Him. L. R. 1127.
12. I am afraid that this submission of the learned Additional Advocate General cannot be accepted for the simple reason that on ::: Downloaded on - 15/04/2017 18:30:29 :::HCHP ...7...
the earlier occasion a number of bail applications have been rejected by this court at the stage when the case was still under investigation.
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But now admittedly the FIR has culminated into a challan and therefore, it is the contents of the FIR, which now have to be read alongwith the material gathered by the investigating agency during the course of the investigation.
13. This court in Cr.MMO No. 183 of 2014 titled Nancy Bhatt and another vs. State of H.P. decided on 6.4.2015, was dealing with the case wherein the FIR had culminated into a charge sheet and this court held as follows:-
"7. Admittedly the FIR is not a substantive piece of evidence. It is information of a cognizable offence given under Section 154 of the Code of Criminal Procedure (for short 'Code'). The legislature in its wisdom under the provisions of the Code has given limited/restrictive power to the Court to intervene at the stage of investigation by the police.
Investigation is the exclusive domain of the police. Ordinarily, it is only when the charge sheet is filed that the Court is empowered either to take cognizance and to frame charge or to refuse to do the same.
8. The FIR is the sheet anchor on the basis of which the investigation ensues. However, once the FIR on the basis of which the investigation was initiated has culminated into a chargesheet, the FIR does not remain the sheet anchor because the same alone then cannot be read and has to be read along with the material gathered by the investigating agenc y during the course of the investigation.
9. It would, therefore, not be permissible for this Court to quash the FIR or else that would amount to annihilating a still born prosecution by going into the merits on the plea of proof of the prima facie case. Further, adverting to those facts and giving findings on merits would otherwise result in the grossest error of law because this Court in exercise of its ::: Downloaded on - 15/04/2017 18:30:29 :::HCHP ...8...
jurisdiction under Section 482 of the Code cannot undertake pre-trial of a criminal case."
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14. The aforesaid principles squarely apply to the present case and, therefore, once the challan has been submitted it is not permissible for the court to read only the contents of the FIR and ignore the other material, which has been gathered by the investigating agency during the course of the investigation on the basis of which the challan has been presented in the court of competent jurisdiction.
15. On a pointed query by this court, the prosecution has not been able to deny the fact that the aforesaid petitioners had infact taken Bharat Bhushan to the hospital, i.e. I.G.M.C., Shimla.
16. A combined reading of the statement of the eye witness Prem Chauhan and the statement given by the complainant under section 154, 161, 164 Cr.P.C. does prima facie indicate that petitioners may not have been there at the site at the time when the murder of Narvir had in fact taken place. Moreover, admittedly no recoveries whatsoever have been effected from any of the petitioners.
17. This court need not delve any further, lest it causes prejudice to the case of either of the parties more particularly the prosecution. But taking into account all the facts and circumstances and also taking into consideration the records of the investigation, as also the contents of the final report, this court is of the considered view that petitioners have been able to carve out a case for grant of bail. The petitioners otherwise are the residents of Tehsil Chopal, ::: Downloaded on - 15/04/2017 18:30:29 :::HCHP ...9...
District Shimla and are therefore, there is hardly any reason to believe that they would either jump the bail or flee from justice.
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18. Accordingly, all the petitions are allowed, however, subject to the following stringent conditions:-
i) Since all the petitioners are lodged at Kaithu Jail, Shimla, therefore, they shall be released on bail, if not required to be detained in any other case on executing bail bond in the sum of Rs.1,00,000/-
(one lac) each with two sureties each to the satisfaction of any Judicial Magistrate 1st Class r stationed at Shimla, District Shimla out of whom one of the surety shall be the father/ mother/ brother/ close relative of the petitioner(s).
ii) The petitioner(s) shall surrender their pass-port(s), if any, before the learned trial Magistrate, while executing the bail bond(s).
iii) The petitioners shall not get involved in any offence during the period of his/their bail.
iv) The petitioner(s) shall not until and otherwise ordered except with the permission of the learned Magistrate leave the territory of Himachal Pradesh
v) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
vi) They shall not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer;
vii) In case any of the above condition is violated, the bail granted hereby is liable to be cancelled for which the Investigating Officer may move an application before the jurisdictional Magistrate/ Principal Sessions Judge for cancellation of bail ::: Downloaded on - 15/04/2017 18:30:29 :::HCHP ...10...
granted hereby as held in P.K. Shaji vs. State of Kerala AIR 2006 SC 100.
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19. The learned Judicial Magistrate 1st Class is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc.Instructions/93-IV.7139 dated 18.03.2013.
20. Any observation made hereinabove 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 hereinabove. The Registry is directed to place a copy of this judgement on the files of connected matter.
Copy dasti.
July 6, 2015. ( Tarlok Singh Chauhan ),
(Hem/GR ) Judge.
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