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2020 Supreme(HP) 239
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
VIVEK SINGH THAKUR, J.
Freed – Petitioner
Versus
State of H.P. – Respondent
CRMPM Nos. 944 to 952 of 2020
Decided On : 06-07-2020
Advocate Appeared:
For the Petitioners: Mr. Kush Sharma, Mr. Gobind Korla.
For the Respondents: Mr. Ashok Sharma, Mr. Shiv Pal Manhans, Mr. Hemant Vaid.
Headnote:
The court discussed the legal framework applicable to anticipatory bail applications under Section 438 of the Code of Criminal Procedure, 1973 (CrPC). It highlighted key legal provisions, their interpretations, and how they influenced the court's decision. The court analyzed various factors and parameters to be considered while adjudicating anticipatory bail applications, including the nature and gravity of the accusation, the role of the accused, the likelihood of the accused fleeing from justice, the possibility of the accused influencing the course of investigation, and the impact of granting anticipatory bail on the communal harmony and societal interest.
Fact of the Case:
The petitioners, accused of being involved in a communal clash, approached the court seeking anticipatory bail under Section 438 of the CrPC. The incident had resulted in severe injuries to several individuals, including the complainant, Saurav, who suffered a grievous head injury. The petitioners contended that the accusations against them were false and politically motivated, and that they were being implicated based on flimsy evidence. The prosecution, on the other hand, argued that custodial interrogation of the petitioners was necessary to ascertain the genesis of the incident, identify all the involved individuals, and collect crucial evidence.
Finding of the Court:
The court, after examining the facts and circumstances of the case, concluded that the petitioners, except for Khalid, were not entitled to anticipatory bail under Section 438 of the CrPC. The court found that the incident was serious and had a significant impact on the communal harmony in the area. It also noted that the investigation was at an initial stage and custodial interrogation of the petitioners was necessary to gather evidence and ascertain the truth. However, the court granted anticipatory bail to Khalid, considering his conduct during the incident and the fact that he appeared to be less involved compared to the other petitioners.
Issues: 1. Whether the petitioners were entitled to anticipatory bail under Section 438 of the CrPC, given the nature and gravity of the accusations against them and the impact of the incident on communal harmony? 2. Whether custodial interrogation of the petitioners was necessary to ascertain the genesis of the incident, identify all the involved individuals, and collect crucial evidence?
Ratio Decidendi: The court held that the petitioners, except for Khalid, were not entitled to anticipatory bail under Section 438 of the CrPC. The court reasoned that the incident was serious and had a significant impact on the communal harmony in the area. It also noted that the investigation was at an initial stage and custodial interrogation of the petitioners was necessary to gather evidence and ascertain the truth. The court further held that Khalid was entitled to anticipatory bail, considering his conduct during the incident and the fact that he appeared to be less involved compared to the other petitioners.
Final Decision: The court dismissed the anticipatory bail applications of all the petitioners except Khalid. Khalid was granted anticipatory bail subject to certain conditions, including making himself available for interrogation, not influencing witnesses, and not leaving the territory of India without permission.
JUDGMENT :
VIVEK SINGH THAKUR, J.
1. These bail applications, filed by petitioners under Section 438 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C.) seeking anticipatory bail, apprehending their arrest, in Case FIR No. 78 of 2020, dated 22.6.2020, registered, under Sections 147, 148, 149, 323, 307 and 341 of the Indian Penal Code, in Police Station Majra, District Sirmour, Himachal Pradesh, adjudicated on the basis of common record and submissions, are being decided together by this common judgment.
2. Section 438 of the Cr.P.C. as existing on date, reads as under:
“438. Direction for grant of bail to person apprehending arrest:-
(1) Where any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of such arrest he shall be released on bail; and that Court may, after taking into consideration, inter-alia, the following factors, namely:-
(i) the nature and gravity of the accusation.
(ii) the antecedents of the applicant including the fact as to whether he has previously undergone imprisonment on conviction by a Court in respect of any cognizable offence.
(iii) the possibility of the applicant to flee from justice.
(iv) where the accusation has been made with the object of injuring or humiliating the applicant by having him so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail:
Provided that, where the High Court or, as the case may be, the Court of Session, has not passed any interim order under this sub-section or has rejected the application for grant of anticipatory bail, it shall be open to an officer in-charge of a police station to arrest, without warrant the applicant on the basis of the accusation apprehended in such application.
(1A) Where the Court grants an interim order under sub-section (1), it shall forthwith cause a notice being not less than seven days notice, together with a copy of such order to be served on the Public Prosecutor and the Superintendent of Police, with a view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally heard by the Court.
(1B) The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final hearing of the application and passing of final order by the Court, if on an application made to it by the Public Prosecutor, the Court considers such presence necessary in the interest of justice.
(2) When the High Court or the Court of Session makes a direction under sub-section (1), it may include such conditions in such directions in the light of the facts of the particular case, as it may thinks fit, including:-
(i) a condition that the person shall make himself available for interrogation by a police officer as and when required.
(ii) a condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer.
(iii) a condition that the person shall not leave India without the previous permission of the Court.
(iv) such other condition as may be imposed under sub-section (3) of section 437, as if the bail were granted under that section.
(3) If such person is thereafter arrested without warrant by an officer in charge of a police station on such accusation, and is prepared either at the time of arrest or at any time while in the custody of such officer to give bail, he shall be released on bail, and if a Magistrate taking cognizance of such offence decides that a warrant should issue in the first instance against that person, he shall issue a bailable warrant in conformity with the direction of the Court under sub-section (1).”
3. It is noticeable that there was no specific provision in the Code of Criminal Procedure
