Karnataka High Court
Sri. Mohammed Nalpad Haris vs State Of Karnataka on 14 March, 2018
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF MARCH 2018
BEFORE
THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR
CRIMINAL PETITION No.1764 OF 2018
BETWEEN
Sri. Mohammed Nalpad Haris,
Son of N.A.Haris,
Aged about 28 years,
Residing at No.23,
Magrath Road, Ashok Nagar,
Bengaluru-560001.
...Petitioner
(By Sri. C.V. Nagesh, Senior Counsel, for
Sri. P.Usman, Advocate)
AND
State of Karnataka
By Cubbon Park Police Station
(Investigation by CCB Bengaluru)
Bengaluru City
Rep. by State Public Prosecutor,
High Court of Karnataka,
High Court Building Annex,
Bengaluru-560001.
...Respondent
(By Sri. M.S.Shyamsundar, SPP for State;
Sri. Murthy Dayanand Naik, Advocate,
for impleading applicant in IA 2/18)
2
This Criminal Petition is filed under Section 439 of
Criminal Procedure Code praying to enlarge the petitioner
on bail in Crime No.22/2018 of Cubbon Park Police Station,
Bangalore City for the offence punishable under sections
504, 143, 146, 326, 341, 149, 141, 506B and 307 of IPC.
This Criminal Petition coming on for orders this day,
the court made the following:
ORDER
This is a petition filed under section 439 of Cr.P.C. The petitioner is accused No.1 in a case registered by the respondent-police and now being investigated by City Crime Branch, Bengaluru in relation to an incident that took place in a restaurant called Fergy Café, U.B. City, Bengaluru at about 10.00 p.m. on 17.2.2018.
2. The first information report was given by one Preveen Venkatachalaiah. The gist of his report is that he came to Bengaluru to meet his friend Vidwat who had fractured his leg four weeks ago. They all went to Fergy Cafe to have dinner and at that time, a verbal fight took place between Vidwat and Nalapad Harris. About 10 - 15 people hit Vidwat mercilessly on his face, head, chest and 3 broke his nose. They hit him with bottles and rings. Vidwat fell down bleeding and was unconscious. He was asked to apologize to Harris, as he is the son of a local MLA. In spite of repeated requests, they did not stop hitting Vidwat. Later on, Vidwat was shifted to Mallya Hospital. He was taken to Intensive Care Unit. Those 10 - 15 people came to the hospital and again threatened and abused Vidwat. Based on this report, initially the Cubbon Park police registered a case of crime in relation to the offences punishable under sections 506, 506B, 326, 141, 143, 144, 146, 147, 341 read with section 149 of IPC. Subsequently, the offence punishable under section 307 of IPC was added in the FIR.
3. The petitioner moved the Court of Session for bail and his application was rejected. Therefore, the petitioner is before this Court 4
4. I have heard the arguments of the learned counsel for the petitioner, Sri C.V. Nagesh and the Special Public Prosecutor, Sri M. S. Shyamsundar, assisted by advocate Sri Murthy Dayanand Naik appearing for applicant, Sri A. Alam Pasha whose application under section 301(2) Cr.P.C. was allowed
5. The learned counsel for the petitioner has argued that a drunken brawl in a bar and restaurant has unnecessarily been given a hype by the media, both print and electronic, just because the petitioner happens to be a son of sitting MLA. He argues that looking into the offences invoked by the police in the FIR, except the offence under section 326 IPC, all other offences are bailable. He argues that in the facts and circumstances, the offence under section 326 of IPC also does not get attracted. In this context, he argues that in the first information report, given by Praveen Venkatachalaiah, it is written that Vidwat was hit with bottles and jugs. According to him, bottle is not a deadly weapon; neither a jug too. He reads section 5 326 and argues that for invoking an offence punishable under section 326 of IPC, an instrument must be of such a kind or nature which can be used for shooting, stabbing or cutting, or which is likely to cause death. A bottle or a jug cannot be used for shooting, stabbing or cutting, or an assault made by using a bottle or jug is unlikely to cause death. It is his argument that the offence alleged against the petitioner, can be brought within the scope of section 325 of IPC which is bailable. Therefore, the petitioner, as a matter of right, is entitled to bail, as all other offences are bailable. It was his further argument that the police have unnecessarily invoked sections 141 and 146 of IPC which are defining sections.
6. His second point of argument is that at a subsequent stage, during investigation, the police would invoke an offence punishable under section 307 of IPC against the petitioner by taking permission of the Magistrate. Inclusion of this offence in the FIR was totally unwarranted inasmuch as after the investigation, the 6 investigator has all the right to file charge sheet even for an offence punishable under section 307 of IPC, if his investigation discloses that such an offence has been committed. This inclusion of an offence punishable under section 307 of IPC was designed by the investigator succumbing to the pressure of the family members of the injured, with a motive to see that a serious non-bailable offence is registered against him, even though from the first information report it is not possible to gather an opinion that an attempt on the life of the injured was made.
7. His third point of argument is that the discharge summary issued by Mallya hospital, where Vidwat was admitted for treatment, discloses that even when he was taken to hospital, he had consciousness, that he was well oriented and vital signs like temperature, B.P., P.R., S.P.O.2 (Oxygen saturation) were in normal range. The C.T. Scan chest revealed un-displaced hairline fracture of lateral angles of 4th to 9th ribs on right side and 4th to 7 8th ribs on the left side. These fractures did not require surgical intervention. When he was in I.C.U., he was able to speak. He was advised to eat from day one, but he could not eat because of swelling. He took liquids as much as he could. He started recovering from 20.2.2018 itself. Because of his fast recovery, he was considered to be shifted out of I.C.U. On the insistence of his family members, he was kept in I.C.U. A cardiologist who examined him, found that he was normal and fit to be transferred out of I.C.U. He was found fit to be discharged from the hospital on 27.2.2018 or 28.2.2018. The other doctors also opined that Vidwat could be sent home. On 25.2.2018, Vidwat made series of complaints and his behaviour was such as to fabricate the physical symptoms (malingering). He refused discharge. The doctor has clearly written in the discharge summary that the injuries sustained by the patient were not life threatening and that there did not take place an untoward incident during his stay in the hospital. Therefore, he argues that discharge summary itself can be based to hold that the injuries that 8 Vidwat has sustained, are not really life threatening. Neither an offence punishable under section 326 of IPC nor 307 of IPC is made out from the medical records. This is a point to be taken into consideration while assessing the existence of prima facie materials in relation to offences alleged against the petitioner for the purpose of granting bail.
8. It is his fourth point of argument that the petitioner himself surrendered before the police. If really he was such a person as to make himself not available for interrogation by the investigation officer, he would not have surrendered. His surrendering itself shows that he is cooperating with the investigator. A false allegation is made against the petitioner that he went to Mallya hospital and threatened the hospital staff. This is found to be false, because in the discharge summary, it is clearly written that nobody came to hospital and threatened the injured. It is too early to say that the petitioner will interfere with investigation process. Before releasing him on bail, it 9 cannot be said that he will threaten the witnesses and tamper with the evidence. If such a complaint is received, the court can always cancel the bail.
9. He referred to para No.22 of the order passed by the learned Sessions Judge and argues that the reasons for refusal of bail by the Sessions Judge were that the victim was not yet discharged from the hospital, that the statement of the victim was not yet recorded and that the investigation was at the preliminary stage. Now, the victim is discharged and his statement is also recorded. Statements of other witnesses have also been recorded. Major portion of the investigation is completed. Therefore, there is no impediment for granting bail.
10. Lastly the learned counsel, by referring to the judgment of the Hon'ble Supreme Court in Sundeep Kumar Bafna v. State of Maharashtra and another [(2014) 16 Supreme Court Cases 623], has submitted 10 that the court should not be carried away by the opinions or sentiments expressed by the media and the petitioner's application for bail must be considered keeping in mind the law and well established principles applicable for deciding an application for bail.
11. The learned Spl Public Prosecutor argues that it was not a drunken brawl that took place in the restaurant; it was an authoritarian and tyrannical exhibition of might to thwart an innocent person who was unknown to the petitioner before that incident took place. The injured had a fractured leg and because of that he had kept his leg stretched which the petitioner did not like when he entered the restaurant. This was the root cause for the incident which resulted in the petitioner and his gang men mercilessly and ruthlessly assaulting the injured which had all the consequences of taking away his life, but for the timely medical intervention.
11
12. He argues that the influence of the petitioner can be demonstrated from the records available before the court. His line of argument is that the investigation officer was not provided with discharge summary in spite of requesting the hospital authorities repeatedly, though he has all the right to have a copy of it for the purpose of fair investigation. But the petitioner is able to produce a copy of discharge summary which is also found to be unbelievable because it was signed by a doctor who is very well known to one person who identifies himself with the father of the petitioner. The way the discharge summary is written itself shows that right from inception, the petitioner and his supporters have managed to tamper with the medical documents. When the first informant has stated very clearly in his report that the injured Vidwat was unconscious when he was taken to hospital, the discharge summary discloses that he was conscious and well oriented. The first informant says that the petitioner and his supporters came to Mallya Hospital soon after admission of the injured and misbehaved there also; 12 contrary to this, the discharge summary says that no untoward incident took place. The evidence collected by the investigation officer shows that there was intervention by the petitioner and his gang, by going to hospital. Therefore, the discharge summary, which cannot be produced at all by the petitioner, cannot be believed to come to an opinion, as has been argued by the petitioner's counsel that the injuries are not life threatening and therefore, no prima facie material is available.
13. He produced two documents to argue that the investigation officer issued notices to the doctor who issued discharge summary seeking his explanation as to how discharge summary could be issued to others, when his request for its copy for the purpose of investigation had not been considered. This is a clear instance of giving a false impression about the whole incident and shows nothing but fabrication of evidence. Therefore, it is his argument that there is interference by the petitioner and if 13 he is released on bail, it is sure that he will certainly use his mighty power to threaten the witnesses.
14. The learned Spl Public Prosecutor also referred to the typed copy of the first information report produced by the petitioner's counsel to argue that intentional tampering of complaint itself can be demonstrated. He referred to the word 'jug' used in the typed copy and compared it with handwritten complaint, where the word used is 'rings'. In this context it is his argument that the supporters of the petitioner, were wearing rings called 'knuckle ring' while hitting the injured. Knuckle ring is a deadly weapon. While producing the typed copy, the petitioner was expected to get it typed correctly. It cannot be said that it is an unintentional typographical error. The Spl Public Prosecutor referred to the argument of Sri C.V. Nagesh, who emphasized the word 'jug' to stress the point that it is not an instrument which is likely to cause death, if used as a weapon. From this argument, it is clear that even before the court, a false representation has been 14 made. The word 'ring' is intentionally misread as 'jug'. Therefore, the intention of the petitioner to suppress the facts, even before the court, can be seen.
15. Another point that he raises is that the first informant went to the police station at 11.45 p.m. The complaint was not registered immediately. The FIR shows that it was registered at 3.30 a.m. on 18.2.2018. The inspector-in-charge of Cubbon Park Police station did not register FIR immediately on coming to know that it was lodged against the son of a sitting MLA. The station house officer would go to the extent of receiving counter complaint against the injured Vidwat from one Arun Babu. It was registered in Crime No.23/2018 in relation to an incident said to have taken place at 10.30 p.m. on 17.2.2018 at Fergy Cafe. Though this report made by Arun Babu was registered at 5.30 a.m., he was taken to Bowring and Lady Curzon Hospital Bengaluru for treatment where he would disclose the history that he was assaulted on 18.2.2018 at 12.00 a.m. by an unknown person at U.B 15 city. This unknown person is none other than Vidwat as mentioned in the first information given by Arun Babu. By 12.00 O'clock in the night, Vidwat had already been admitted to Mallya Hospital. So by comparing the first information registered in Crime No.23/2018 and the OPD slip, it can be very well said that it is a false complaint, stage managed by the petitioner and his supporters to give a colour that the first information given by Praveen Venkatachalaiah was false one. This second complaint is a clear indication of use of authority by the petitioner for falsifying the complaint registered against him and this shows his interference from inception.
16. The incident as a whole is a crime against society. It was a horrifying incident. The persons who had visited the restaurant could not come to the rescue of the injured being afraid of the brutality of the petitioner and his supporters. He requested me to watch the C.C. T.V. footages which show the barbaric way of attacking an innocent visitor to the restaurant. The mere presence of 16 the petitioner itself is sufficient to intimidate the witnesses. The wound certificate that the petitioner's man has collected from the hospital shows the injuries to be grievous. Knuckle ring and bottle can certainly be used as an instrument for causing death or grievous injury. At this stage, there are prima facie materials to hold that the offences punishable under sections 326 of and 307 of IPC are made out.
17. In support of his argument, he refers to three judgments of the Hon'ble Supreme Court viz.
1) State of U.P. through CBI v. Amarmani Tripathi [(2005) 8 Supreme Court Cases 21]
2) Satish Jaggi v. State of Chhattisgarh and others [(2007) 11 Supreme Court Cases 195]
3) Neeru Yadav v. State of Uttar Pradesh and another [(2016) 15 Supreme Court Cases 422] 17
18. The High Court exercises concurrent jurisdiction under section 439 of Cr.P.C. The Session Judge while exercising jurisdiction under section 439 of Cr.P.C. has given cogent reasons for rejecting the bail. While exercising concurrent jurisdiction, there cannot be interference with reasons assigned by the Session Judge unless the petitioner has been able to show changed circumstances. The entire investigation is not completed and therefore, the petitioner cannot be enlarged on bail.
19. The learned counsel for the petitioner, Sri C.V. Nagesh gave a lengthy reply. Reiterating that the incident was nothing but a group clash and a drunken brawl, he argued that the complaint made by Praveen Venkatachalaiah and the spot panchanama written by the I.O. do not show the specific overt act of the petitioner. Allegations are made against some others whose names do not appear either in the complaint or in the panchanama. Therefore there is no prima facie material against the petitioner.
18
20. With regard to the word 'jug' that he emphasized while arguing on the first day, he replied that what is written in the complaint is 'jug' only. If it could be read as 'ring', the letter 'n' is not seen there. Therefore, he has correctly employed the word 'jug' which could have been used at the time of assault. In this regard, he submitted that even if it could be read as 'ring' for argument sake, the police should have seized the rings during investigation. The seizure panchanama shows seizure of two material objects, viz. glass pieces and ice buckets. With regard to ice bucket, he submitted that it could be referred to as 'jug' also. Even in the two remand applications dated 19.2.2018 and 21.2.2018, there is just a mention of a trivial incident. There is no reference to seizure of the rings or the knuckle rings.
21. Referring to the arguments of the Spl Public Prosecutor with regard to discharge summary, it is his 19 reply that there is no need to make a big issue as to how the petitioner could have accessed to it. It is his submission that a TV channel accessed discharge summary and uploaded the same on You Tube. Thus the petitioner's father could access to it. He submitted that discharge summary is not a confidential document to which nobody could access. In fact, the prosecution did have all the details of nature of injuries sustained by Vidwat. The prosecution has made its best efforts to suppress the facts and exaggerate the whole situation. He referred to an order passed by the Court of Session on 27.2.2018 and submitted that this order makes it amply clear that by that time, the prosecution had with it all relevant medical documents pertaining to the injured. Therefore the notice issued by the I.O. to the doctor who issued discharge summary is only an attempt to suppress the truth and exasperate the whole situation to the disadvantage of the petitioner. The investigation must be fair and impartial, rather the entire scenario appears to be hostile to the interest of the petitioner. He also alleged by making a 20 reference to a news item that a senior police officer who is a close friend of father of the injured was responsible for inclusion of the offence punishable under section 307 of IPC. This shows that the injured is a powerful person.
22. He also argued that an upload made on You Tube shows that on 18.2.2018 the injured Vidwat gave a statement in the hospital itself. This shows that he was very much fit on the very next day of the incident. The contention of the prosecution that Vidwat was not able to speak for many days gets falsified by this statement given on 18.2.2018. The investigator would say that Vidwat was not able to give statement, which is wrong.
23. The learned counsel further submitted that doctors of some well known hospitals sometimes would release Press statements. Dr. Anand who treated the injured, made a statement that Vidwat was perfectly fine and was unnecessarily delaying to give statement to the 21 police. In support of his argument, he has produced the copy of a shared article from a web-site. Therefore, it is his argument that the statement of Dr. Anand further fortifies the contents of the discharge summary, which cannot be brushed aside at least to the extent of nature of injuries sustained by Vidwat, let alone another statement, which refers to not happening of any untoward incident in the hospital.
24. He further referred to a caveat petition filed by a TV channel against the petitioner's father and argued that this is the amount of interest that the media channels are trying to make a false propaganda against the petitioner and his father. The materials placed before the court clearly show that the injuries sustained by Vidwat do not take the whole case beyond section 325 of IPC.
25. At last, he referred to two judgments of the Supreme Court in the case of Shyam Sharma v. State of 22 Madhya Pradesh and another [(2017) 9 SCC 362] and Ved Pal v. State of U.P. [1987 (Supp) Supreme Court Cases 596] and some of the judgments of this court in Mahammed Ali v. State of Karnataka [2016 (2) KarL.J. 505], Budeppa Gouda and another v. State of Karnataka [2017 (3) Kar L.J. 369], Ramesh v. State by Kunigal Police and another [2015 (2) Kar.L.J 584 (DB)], and Mallikarjun and others v. State of Karnataka [2016 (2) KCCR 1110], and submitted that despite the accused being charged for the offence punishable under section 307 of IPC, the courts have brought down the whole incident within the ambit of lesser offences like 323 or 324 of IPC.
26. After hearing both sides, firstly I would like to refer to the judgment of the Supreme Court which has been relied upon by the learned counsel for the petitioner. In Sundeep Kumar Bafna (supra) the Hon'ble Supreme Court has clearly held that the learned Session Judge is expected to remain impervious to any pressure that may be brought upon him either from the public or from the 23 media as it was the fundamental and onerous duty cast on every judge. In my opinion this word of caution applies to a judge of the High Court also. It is true that this case has attracted the attention of the public as well as the media. The very fact that a TV Channel went to the extent of filing a caveat in a civil court shows the amount of the public attention that this incident has drawn. For deciding this application, the perception of the media is insignificant. Decision for grant or denial of bail has to be taken on the materials that the prosecution has placed before the court. Therefore I don't want to make any comment on this caveat petition.
27. As could be made out from the argument of the learned counsel for the petitioner, the injured Vidwat and the petitioner were not known to each other before the incident took place. A flimsy reason triggered the incident which resulted in Vidwat being attacked by the petitioner and his friends or gang men. In my opinion it was not a drunken brawl. In the case diary produced by 24 the Public Prosecutor, there is a copy of the letter addressed by PSI, Cubbon Park police station to the duty doctor at Mallya Hospital. The police officer wanted an opinion from the doctor whether the injured Vidwat was drunk at the time when he was brought to hospital. This request was made by the police officer pursuant to another complaint or report made by Arun Babu against Vidwat. The doctor endorses an opinion on the back of his letter stating that the patient was not under the influence of alcohol. Therefore, it is clear that the injured Vidwat, according to the prosecution papers, was not drunk. Insofar as the petitioner is concerned, he also entered the restaurant at 10.20 p.m. and the entire incident broke out soon after his arrival to the restaurant. Probably, he too was not in a drunken state at that time. Therefore, the entire argument of the learned petitioner's counsel that the incident was nothing but a drunken brawl, cannot be accepted.
25
28. In regard to the argument that from the materials available on record, only the offence under section 325 of IPC could be made out, is also not acceptable. The medical report shows that the injured Vidwat has sustained grievous injuries. In the first information report there is a reference to using bottles and rings for assaulting the injured. Just because the medical records do not disclose even a scratch-mark on the person of the injured, it cannot be said that the bottles were not used for assaulting. Whether a bottle can be employed as an instrument for inflicting injuries or not, depends on how it is made use of. It is not necessary always that the bottle must be broken and used for committing an offence. The bottle which is a hard substance, if used for assault, is likely to cause fractures. Therefore, the argument advanced by the leaned counsel for the petitioner cannot be accepted at this stage. Further, it is for the trail judge to decide at the stage of framing charge as to which offence is actually attracted from the evidence collected by the I.O. At the stage of deciding a bail application, 26 usurping on the jurisdiction of the trial judge is not permitted. It is only from the complaint, the first information report and other evidence collected by the investigator, an endeavour should be made, whether there are prima facie materials as regards a commission of a non-bailable offence, or not. Even from the discharge summary produced by the petitioner, the injuries mentioned are grievous in nature because of hairline fractures to both nasal bones, frontal process of left maxilla, left and right side ribs. So these injuries are grievous. How these injuries occurred is a matter to be proved by the prosecution when the trial is held. Therefore, I do not venture to consider this line of argument.
29. To some extent the argument of the learned counsel for the petitioner that investigation to a larger extent is completed is acceptable because the case diary shows that the statements of many of the witnesses have been recorded by the investigator. The learned counsel for 27 the petitioner argued that what remains to complete investigation is formal, in the sense, to obtain some reports from laboratories or other agencies and therefore the application for bail can be considered in favour of the petitioner. I am unable to agree with him here. it is not necessary for me to state here the principles governing the consideration of bail application as they are all settled now. But, I would like to take into consideration two important aspects viz. 1) character, behaviour, means position and standing of the accused, and 2) reasonable apprehension of the witnesses and evidence being tampered with.
30. It is not without any reason that only these two aspects are now being concentrated. The petitioner is the son of a sitting MLA. The station house officer showed no interest in registering the complaint lodged before him at 11.45 p.m. There is also an endorsement made by the station house officer, showing that FIR was registered at 3.30 a.m. on 18.2.2018 in Crime No.22/2018. There is no explanation as to why the station house officer delayed to 28 register the complaint although it was made at 11.45 p.m. on 17.2.2018. In the meantime one Arun Babu made a complaint against Vidwat and it was registered at 5.30 a.m. on 18.2.2018 in Crime No.23/2018. Though this complaint was registered at 5.30 a.m., this Arun Babu was taken to Bowring Hospital for treatment and there this Arun Babu would disclose history of assault on him at 12.00 a.m. on 18.2.2018, but by that time Vidwat had already been admitted to Mallya Hospital, Therefore, the incident alleged by Arun Babu cannot be per se believed and as rightly argued by the Special Public Prosecutor, it could be a stage managed complaint at the instance of the petitioner. The learned counsel for the petitioner while replying, very intelligently, did not meet this point at all. He only submitted that a case and a counter case were registered. At this stage, I am of the pinion that the very registration of a case at the instance of Arun Babu appears to be due to intervention of a police officer. Inference can be drawn to this effect and therefore unhesitatingly it can be said that from the first hour itself, the petitioner tried to 29 manage the police and definitely it was an act of interference.
31. It is true that the seizure panchanamas do not disclose seizure of knuckle rings. But in the complaint made by Praveen Venkatachalaiah, there is a reference to employing the rings for hitting. If the I.O. did not seize rings, it cannot be a ground to suspect the prosecution case at this stage. It is well established principle, even the learned counsel for the petitioner argued, that for constituting an offence punishable under section 307 of IPC, a weapon need not always be used. The Hon'ble Supreme Court in the case of State of Maharashtra v. Balram Bama Patil [1983 Crl.L.J. 331] has held that mere infliction of simple injuries cannot itself be a ground for acquittal, if the offence otherwise falls under section 307 of IPC. The learned counsel argued that there was no intention on the part of the accused to make an attempt on the life of Vidwat; it was not a pre-meditated act. It may be true, but section 307 of IPC not only speaks of 30 intention, but also knowledge. Even if the intention was not there, if the prosecution is able to prove, that the accused had such kind of knowledge of the consequences of their act, the offence punishable under section 307 of IPC would get attracted. The stage is too early to examine the prosecution case in detail. For the purpose of granting bail, the materials placed by the prosecution before the court must be considered. Therefore, non seizure of knuckle rings is of no consequence.
32. Much has been argued about the discharge summary. The Spl Public Prosecutor states that the discharge summary was written to the convenience of the petitioner by a doctor who is not authorized to issue it. It contains so many details which ought not to be written, as the special public prosecutor put it. It is true that the discharge summary appears to have been written very unusually. In fact, before the special public prosecutor raised this point, I questioned the learned counsel for the petitioner regarding genuineness of the discharge 31 summary noticing one sentence 'no untoward incident took place when the patient was in the hospital'. The learned counsel answered that even if this part was ignored, rest of the contents of the discharge summary could be considered to arrive at an opinion that Vidwat did not sustain serious injuries endangering his life, and that he was discharged from the hospital and therefore there were no materials connecting the petitioner to an offence punishable under section 326 or 307 of IPC. The learned counsel has explained the source of access to discharge summary. The I.O. issued notice to doctor calling upon his explanation for not providing a copy of the discharge summary to him. Copy of this notice is produced by the Spl public prosecutor. The discharge summary is issued to patient at the time of his discharge from the hospital. In a medico legal case, the investigation officer is entitled to a copy of it. Before the investigation officer could get a copy of it, if discharge summary could be accessed by a TV Channel, it only shows somebody's intervention. It is true, as has been argued by Sri C.V. Nagesh, the prosecution 32 had with it, a document pertaining to nature of injuries sustained by Vidwat, but nothing can be made out from the prosecution records that on 5.3.2018, investigation officer was provided with a copy of discharge summary. Be that controversy as it may, the source of access can also be ignored; but the way it is written cannot be ignored. Especially the sentence that 'no untoward incident took place ....' cannot be ignored. The argument of Sri C.V. Nagesh to ignore this point was to his convenience. In my opinion the doctor who has issued the discharge summary, appears to have exceeded his limits. It is very pertinent to mention here that the very same doctor goes to the extent of giving a statement about the fitness of Vidwat. He has also given a statement that Vidwat has been tutored to delay in giving statement before police. If these statements of doctor are taken into consideration, obliviously a question arises as to what is the interest that he has, in giving these statements? Is he expected to give such statements? The discharge summary shows that at least 3 - 4 doctors attended on the patient. When those 33 doctors kept quiet, why Dr. Anand shows interest in giving statements and writing something in his discharge summary which is not expected to find a place in it. Whether this Dr. Anand was authorized to give the discharge summary is also disputed by the Spl Public Prosecutor. All these events only show that the doctor might have been under the influence of the petitioner or his men. This is one way of tampering with evidence. Therefore, any amount of explanation offered by the petitioner's counsel regarding the discharge summary is of no avail to him.
33. The learned counsel for the petitioner has produced a copy of the 'You Tube' print out purporting to be uploaded by one Narayan Ji Rai. According to this video clipping, as has been argued by Sri C.V. Nagesh, Vidwat was able to speak on 18.2.2018 and he was in a fit condition to give statement before the police. He has made use of this document to project a picture that intentionally Vidwat did not give statement before the police, though he 34 was in a fit condition to give statement on the very next day of the incident itself. But, the case diary contains a letter dated 23.2.2018 addressed by the I.O. to the duty doctor of Mallya Hospital to ascertain the condition of Vidwat to give statement. On the back of this letter, the duty doctor has made an endorsement, "patient is not in a condition to give statement, kindly do the same when the patient shifted to Wards". If a doctor of the hospital has opined like this, the video clipping found in You Tube cannot be considered at all, rather, it has to be opined that it is an attempt made by the petitioner by giving a distorted picture about the condition of Vidwat, which attempt, in my opinion, should be adversely considered.
34. Insofar as the position of the petitioner in the society is concerned, he is the son of a sitting MLA and wields power. This can be very much made out after watching footages of a CC TV coverage. The way he and his men attacked the injured brutally shows the exhibition of wielding muscle power. The fact that nobody in the 35 restaurant did not come to the rescue of the injured, is also one factor which cannot be ignored. The entire incident appears to be horrifying and terrifying. Therefore, if a person who wields such an authority and mighty power, if released on bail, it is sure that he uses his position to destroy the evidence. Indeed, bail is a matter concerning the liberty of a person who is detained in prison; pre-conviction detention is discouraged. The Hon'ble Supreme Court while dealing with incidents of this nature has held in Neeru Yadav's case (supra) as below:
13. We will be failing in our duty if we do not take note of the concept of liberty and its curtailment by law. It is an established fact that a crime though committed against an individual, in all cases, it does not retain an individual character. It, on occasions and in certain offences, accentuates and causes harm to the society. The victim may be an individual, but in the ultimate eventuate, it is the society which is the victim. A crime, as is understood, creates a dent in the law and order situation.36
In a civilized society, a crime disturbs orderliness. It affects the peaceful life of the society. An individual can enjoy his liberty which is definitely of paramount value, but he cannot be a law unto himself. He cannot cause harm to others. He cannot be a nuisance to the collective. He cannot be a terror to the society;
and that is why Edmund Burke, the great English thinker, almost two centuries and a decade back eloquently spoke thus:
"Men are qualified for civil liberty in exact proportion to their disposition to put moral chains upon their own appetites;
in proportion as their love to justice is above their capacity; in proportion as their soundness and sobriety of understanding is above their vanity and presumption; in proportion as they are more disposed to listen to the counsel of the wise and good, in preference to the flattery of knaves. Society cannot exist unless a controlling power upon will and appetite be placed somewhere; and the less of it there is within. The more there must be without. It is ordained in the eternal constitution of things, that men 37 of intemperate minds cannot be free. Their passions forge their fetters."
This principle is very much applicable to this case.
35. The learned counsel for the petitioner, in his reply arguments, referred to some of the decisions of the Hon'ble Supreme Court and also this Court (supra). In my opinion these decisions do not help the petitioner, at this stage, for, in some of these cases, the court came to conclusion after recording of evidence that the offence punishable under section 307 of IPC was not made out, rather the evidence would show that an offence of lesser gravity had been proved. This case has not reached that stage. Investigation is not yet completed. In some of the decisions cited by the learned counsel, it is true that bail has been granted to the accused. These decisions also do not help, for, in the facts and circumstances of the given case, it might have been held that the accused would be entitled to bail.
38
36. Therefore, from the above discussion, I come to conclusion that the there are prima facie materials to connect the petitioner with non-bailable offences such as section 326 or section 307 of IPC. More than that, as has been held by the Hon'ble Supreme Court in Amarmani Tripathi (supra), the character, behaviour means position and standing of the accused are very important to be considered. It is sure that he misuses his position, as he has done already and discussed as above, to intimidate the witnesses and tamper with evidence. The CC TV footages show the horrendous atmosphere created when the incident took place and there is no guarantee that such people will remain quiet without tampering with evidence once they come out of jail. Hence, I come to conclusion that this petition deserves dismissal. Petition is dismissed. Bail is rejected.
Sd/-
JUDGE