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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Vivek Singh Thakur, J.
Freed - Appellant
Versus
State of Himachal Pradesh - Respondent
Criminal Miscellaneous Petition No. 944 of 2020, 945 of 2020, 946 of 2020, 947 of 2020, 948 of 2020, 949 of 2020, 950 of 2020, 951 of 2020, 952 of 2020
Decided On : 06-07-2020
The Court discussed the principles and parameters to be considered while adjudicating anticipatory bail applications under Section 438 of the Code of Criminal Procedure (CrPC). It emphasized that the grant of anticipatory bail is an extraordinary remedy and should be exercised sparingly. The Court held that the petitioners, except for Khalid, were not entitled to anticipatory bail at this stage, as custodial interrogation was necessary to ascertain the genesis of the incident and find out the real cause of the incident and motive behind the commission of the offense. However, the Court granted anticipatory bail to Khalid, considering his conduct and role in the incident as per the limited evidence available at the initial stage of the investigation. The Court also directed the Director of Health Services to issue instructions to doctors to record their observations, findings, and opinions in MLCs and other documents of medical examination in a readable manner.
Fact of the Case:
The petitioners were accused of being involved in a communal riot, where two persons were beaten in the presence of a large gathering and those who came to rescue them were also beaten. The incident had a significant impact on the communal harmony in the area.
Finding of the Court:
The Court held that the petitioners, except for Khalid, were not entitled to anticipatory bail at this stage, as custodial interrogation was necessary to ascertain the genesis of the incident and find out the real cause of the incident and motive behind the commission of the offense. However, the Court granted anticipatory bail to Khalid, considering his conduct and role in the incident as per the limited evidence available at the initial stage of the investigation.
Issues: 1. Whether the petitioners were entitled to anticipatory bail under Section 438 of the CrPC. 2. Whether the petitioners were entitled to regular bail under Sections 437 and/or 439 of the CrPC.
Ratio Decidendi: 1. The Court held that the grant of anticipatory bail is an extraordinary remedy and should be exercised sparingly. The Court considered the nature and gravity of the accusation, the possibility of the petitioners fleeing justice, the possibility of the petitioners influencing the course of investigation or tampering with evidence, the likelihood of violence or intimidation of witnesses, and the impact of the grant of anticipatory bail on the larger interests of the public or the State. 2. The Court held that the petitioners, except for Khalid, were not entitled to anticipatory bail at this stage, as custodial interrogation was necessary to ascertain the genesis of the incident and find out the real cause of the incident and motive behind the commission of the offense. However, the Court granted anticipatory bail to Khalid, considering his conduct and role in the incident as per the limited evidence available at the initial stage of the investigation.
Final Decision: The Court dismissed all the petitions, except for the petition filed by Khalid, which was allowed. The Court also directed the Director of Health Services to issue instructions to doctors to record their observations, findings, and opinions in MLCs and other documents of medical examination in a readable manner.
JUDGMENT
Vivek Singh Thakur, J. - 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 & 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; and
(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 subsection (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
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