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Karnataka High Court: Accused Discharged in Suicide Abetment Case Due to Insufficient Evidence

Case title: ONKARAPPA G H & ORS VS THE STATE OF KARNATAKA

Case no.: CRIMINAL REVISION PETITION NO. 141 OF 2024

Dated on: 21st may 2024

Quorum: HON’BLE MR JUSTICE S RACHAIAH

FACTS OF THE CASE

The case of the prosecution is that the deceased Shruthi was working as a maid in the house of Sri. G.H. Omkarappa and Smt. Anusuyamma at Shivamogga. The deceased was staying with them since two years. The complainant being a mother of the deceased-Shruthi used to visit the house where Shruthi was working often and she was enquiring about the welfare of her daughter. Such being the fact, she has received a message from the reliable source that her daughter committed suicide in the house of the accused around 2.00 pm. Immediately after receiving the said information, the complainant and others went to Shivamogga and learnt that the deceased Shruthi committed suicide inside the room and it was bolted from inside. It is further stated in the complaint that, the door was opened with the help of the localities in the presence of police. On opening the said room, the complainant found that her daughter was hanging from the ceiling fan and also noticed a chit said to have written by the deceased. Hence, she lodged a complaint. Upon the complaint, the jurisdictional police registered a case in Cr.No.207/2015 for the offence under Section 306 read with Section 34 of IPC. After conducting investigation submitted charge sheet. Being aggrieved by filing of the charge sheet, the petitioner herein filed an application under Section 227 of Code of Criminal Procedure Act (for short, ‘Cr.P.C.’). The said application came to be rejected by the Trial Court. Hence, this revision.

ISSUES

  • Whether the accused can be charged under Section 306 of the IPC for abetting suicide based on the evidence provided in the complaint and charge sheet.
  • Whether the contents of the complaint and charge sheet provide sufficient grounds to proceed against the accused and whether they disclose the necessary elements of instigation or harassment required for abetment of suicide.
  • Whether the Trial Court’s decision to reject the application for discharge was justified or if it amounted to an abuse of process of law.

LEGAL PROVISINS

Indian Penal Code (IPC), Section 306: Abetment of Suicide Section 306 of the IPC deals with the abetment of suicide. It states that if any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Indian Penal Code (IPC), Section 34: Acts Done by Several Persons in Furtherance of Common Intention Section 34 deals with acts done by several persons in furtherance of a common intention. It states that when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone.

Code of Criminal Procedure (Cr.P.C.), Section 227: Discharge Section 227 of the Cr.P.C. provides the power to discharge. It states that if, upon consideration of the record of the case and the documents submitted therewith, and after hearing the submissions of the accused and the prosecution in this behalf, the Judge considers that there is not sufficient ground for proceeding against the accused, he shall discharge the accused and record his reasons for doing so.

CONTENTIONS OF THE APPELLANT

Arun Shyam, learned Senior Counsel for Sri. Suyog  Herele, learned counsel for the petitioner and Sri. Rahul Rai, learned High Court Government Pleader for the State. It is the submission of learned Senior Counsel that the findings of the Trial Court in rejecting the application for discharge is erroneous and against to the facts of the case. Hence, the same is liable to be set aside. It is further submitted that the contents of the charge sheet do not disclose the ingredients of Section 306 of IPC. In fact, the complainant in her complaint stated that she was visiting the house of the accused and she was enquiring about the welfare of her daughter. The averments of the complaint did not disclose either instigation or harassment to commit suicide. It is further submitted that a letter said to have been found in the room where the deceased committed suicide clearly discloses that, the deceased was loving a boy and she mentioned the phone numbers and narrated certain facts in it. However, the deceased mentioned in the end of the said letter, that accused are responsible for her suicide. That itself is not sufficient to attract the ingredients of instigation or abetment to commit suicide. Such being the fact, asking the petitioner to face the trial, certainly, amounts to an abuse of process of law. Therefore, the petition deserves to be allowed. Making such submissions, the learned Senior Counsel prays to allow the petition.

CONTENTIONS OF THE RESPONDENTS

The learned High Court Government Pleader vehemently justified the order of rejection passed by the Trial Court and submitted that as per the averments of the complaint, the deceased Shruthi was working in the house of the accused as a maid and she committed suicide in their house by leaving death note. The said death note contains some facts and the same are required to be proved during full-fledged trial. In case, if the petition is allowed, the facts remain unchallenged. Therefore, the petition deserves to be dismissed. Making such submission, the learned High Court Government Pleader prays to dismiss the petition. Having heard learned counsel for the respective parties and also after having perused the findings of the Trial Court, the Trial Court while rejecting the application opined that at the stage of framing of charges, the Court has to see only prima-facie material and further opined that the contents of the death note are required to be proved during trial. It is settled principles of law that in order to convict a person under Section 306 of IPC, there has to be a clear mens rea to commit the offence. Further, it also requires an active act or direct act which lead the deceased to commit suicide seeing no option and this act must have been intended to push the deceased into such a position that he/she committed suicide.

 

COURT’S ANALYSIS AND JUDGEMENT

In the present case, either the averments of the complaint or averments of the charge sheet do not disclose neither mens-rea nor instigation. Even assuming that the contents of the death note are true, it can be inferred from the averments that the deceased was loving a boy and she mentioned the phone numbers and expressed her willingness to meet him and at the same time, she mentioned the reason for committing suicide. “Mere mentioning that the accused are responsible for committing suicide “, is not sufficient to attract the ingredients of abetment. Such being the facts, asking accused to face the trial, certainly would be considered as an abuse of process of law. Therefore, the petition deserves to be allowed. It is needless to say that the Trial Court while considering the application for discharge must satisfy as to whether the material placed in the charge sheet are sufficient to record the conviction. The Hon’ble Supreme Court time and again reiterated that the Trial Court shall not act as a post office between prosecution and investigating agency. Of course, the Trial Court while framing the charge must prima facie satisfy that the materials are sufficient to frame the charge. However, the said word “prima facie” would mean that, even if no other material is placed by the investigating agency, the conviction can be recorded based on the charge sheet materials. The Criminal Revision Petition is allowed. The order dated 18.12.2023 in S.C No.126/2023 passed by the Prl. District and Sessions Judge, Shivamogga, is hereby set aside. The petitioners are discharged for the offence punishable under Sections 306 read with Section 34 of IPC.

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Judgement Reviewed by – HARIRAGHAVA JP

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Rajasthan High Court Granted probation to convicted appellants in an attempted murder case

 Case title: Unknow VS State of Rajasthan

Case no.: S.B. Criminal Appeal No. 483/1993

Dated on:  February 19th 2024

Quorum:  Hon’ble. MR Justice GANESH RAM MEENA

FACTS OF THE CASE

The present criminal appeal has been preferred by the accused-appellants against the judgment of conviction and sentence dated 26.11.1993 passed by the Court of learned Special Judge, Prevention of Scheduled Castes/ Scheduled Tribes, Prevention of Atrocities, Jaipur (for short ‘the trial Court’) in Sessions Case No.88/1990. Five years Rigorous Imprisonment and fine of Rs.2,000/- and in default of payment of fine, to undergo 2 months imprisonment. Five years Rigorous Imprisonment and fine of Rs.2,000/- and in default of payment of fine, to undergo 2 months imprisonment. Fine of Rs.100/- each and in default of payment of fine each of the accused appellant has to undergo 15 days imprisonment. On filing of appeal, the sentence awarded to the accused appellants was suspended vide order dated 13.12.1993 and they were released on bail.

ISSUES

  • Whether the reformation of the accused-appellants and their peaceful conduct post-bail support the argument that they do not pose a risk to public safety and thus should be granted probation?
  • Whether the objections raised by the learned Public Prosecutor, opposing leniency and probation due to the nature and manner of the offense, should preclude the granting of probation to the accused-appellants?
  • Whether the prolonged duration of the trial and the resultant mental agony and harassment faced by the accused-appellants since 1993 warrant leniency in sentencing?
  • Whether the conviction and sentence of the accused-appellants by the trial court under Sections 307 and 323 read with Section 34 of the Indian Penal Code (IPC) were valid and justified?
  • Whether the accused-appellants are entitled to the benefit of probation under Section 4 of the Probation of Offenders Act, 1958, considering their age, lack of criminal antecedents, and behaviour post-conviction?

 LEGAL PROVISIONS

Indian Penal Code (IPC)

Section 307 IPC: This section pertains to the offense of attempt to murder. It deals with the intention or knowledge of committing murder, and the actions taken in furtherance of that intention. The maximum punishment under this section is imprisonment for up to 10 years, and if the act causes hurt, the punishment can extend to life imprisonment, along with a fine.

Section 323 IPC: This section addresses the punishment for voluntarily causing hurt. The punishment can be imprisonment for up to one year, or a fine up to one thousand rupees, or both.

Section 34 IPC: This section pertains to acts done by several persons in furtherance of common intention. When a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act as if it were done by him alone.

Probation of Offenders Act, 1958

Section 4: This section allows the court to release certain offenders on probation of good conduct instead of sentencing them to imprisonment. The court can use this provision for offenders who have committed offenses not punishable with death or life imprisonment, and if the court deems it appropriate after considering the offender’s age, character, and the circumstances of the case.

CONTENTIONS OF THE APPELLANT

Mr. V.R. Bajwa, Senior Counsel assisted by Mr. Amar Kumar and Ms. Savita Nathawat, appearing for the accused appellants instead of arguing the appeal on its merits with regard to challenge to the conviction and sentence, confines his arguments for grant of benefit of probation to the appellants under the provisions of Probation of Offenders Act, 1958 (hereinafter referred to as ‘the Act of 1958’). Counsel further submits that except the present case, no case has been registered against the accused-appellants. Counsel further submits that the accused appellants are living peacefully in the society without there being any criminal antecedents to their discredit. Senior Counsel further submits that the accused-appellants have faced trial for about three years and against the impugned judgment, they preferred the appeal in the year, 1993. Thus, from the last 33 years, the accused-appellants are facing mental agony and harassment because of pendency of criminal case registered against them. Counsel further submits that the maximum sentence under Section 307 of IPC is 07 years but in the present case, the accused appellant No.1 Nawal Kishore has been convicted for offence under Section 307 of IPC and accused appellant No.2-Rajesh has been convicted for the offence under section 34 read with section 307 IPC and they been sentenced to undergo five years Rigorous Imprisonment and for the offence under section 323 read with section 34 IPC a fine of Rs.100/- has been imposed upon each of them. Senior Counsel further submits that the accused appellant No.1 is 59 years of age and the accused appellant No.2 is 56 years of age. Thus, taking into consideration the aforesaid facts, the accused-appellants may be given the benefit of probation under the provisions of the Act of 1958.

CONTENTIONS OF THE RESPONDENTS

Learned Public Prosecutor appearing for the State opposed the prayer made by the counsel appearing for the appellants and submits that looking to the allegations and the manner in which the incident took place, the appellants are not entitled for any kind of leniency in awarding sentence as well as the benefit of probation under Section 4 of the Act of 1958. Considered the submissions made by the Senior Counsel appearing for the appellants as well as the learned Public Prosecutor. Learned trial Court while considering the issue of granting leniency to the accused appellants, has rejected their prayer in regard to the leniency. Section 4 of the Act of 1958 nowhere says that the benefit of probation cannot be allowed to an accused who is above 21 years of age. The Act of 1958 deals with the powers of the Court to release certain offenders for good conduct.

COURT’S ANALYSIS AND JUDGEMENT

The Statement of Objects and Reasons of the said Act explains the rationale for the enactment and its amendments: to give the benefit of release of offenders on probation of good conduct instead of sentencing them to imprisonment. Thus, increasing emphasis on the reformation and rehabilitation of offenders as useful and self-reliant members of society without subjecting them to the deleterious effects of jail life is what is sought to be subserved. The main object of sentencing a convicted person is to bring in him certain character reformation and to keep him away from the society so as to see that the impact of his criminal character does not put any adverse impact on any other person. In the present case, after conviction of the accused appellants, their sentence was suspended and they were release on bail vide order dated 13.12.1993. Since after their release on bail, they are living in the society peacefully without there being any criminal antecedents to their discredit. There is no bar under law to extend the benefit of probation to convict of above 21 years age. After taking into due consideration the legislative intent of the Act and the decision as referred in above paragraphs, this Court deems it appropriate to extend the benefit of probation to the appellants under Section 4 of the Act of 1958. the present appeal is partly allowed. While maintaining the conviction of the present appellant No.1- Nawal Kishore for the offence under Section 307 of IPC and of accused appellant No.2-Rajesh for the offence under section 34 read with section 307 IPC and of both the accused appellants under section 323 read with section 34 IPC, as recorded by the learned Trial Court in the impugned judgment, this Court interferes only with the sentence part of the said judgment and directs that the appellants shall be released on probation under Section 4 of the Act of 1958 upon their furnishing a personal bond in a sum of Rs. 50,000/- each and two sureties in the sum of Rs. 25,000/- each to the satisfaction of the learned Trial Court with a further undertaking that they shall maintain peace and good behaviour for a period of two years and shall not repeat the offence. The appellants are allowed two months’ time to furnish the bail bonds, sureties and undertaking as ordered above. The appellants are on bail. They need not to surrender. Their bail bonds stand cancelled accordingly. The Registry is directed to send back record of the case to the trial court forthwith.

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Patna High Court: Acquits Convicts in 2011 Murder Case Due to Lack of Evidence and Witness Credibility

Patna High Court: Acquits Convicts in 2011 Murder Case Due to Lack of Evidence and Witness Credibility

Case title:  Rajendra Yadav VS The State of Bihar

Case no.:  CRIMINAL APPEAL (DB) No.940 of 2018

Dated on: 14th May 2024

Quorum:  Hon’ble. MR JUSTICE VIPUL M. PANCHOLI and Hon’ble. MR. JUSTICE RAMESH CHAND MALVIYA.

FACTS OF THE CASE

The present appeals have been filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’) challenging the impugned judgment of conviction dated 13.06.2018 and order of sentence dated 14.06.2018 passed by the learned 3rd Additional District and Sessions Judge, Araria, in connection with Sessions Trial No. 1151/2012, T.R. No.64/2017 (arising out of Bhargama P.S. Case No. 43/2011) by which all the appellants have been convicted and appellant/convict Rajendra Yadav has been sentenced to undergo rigorous imprisonment for life with a fine of Rs. 50,000/- (fifty thousand) for the offence punishable under Section- 302 of I.P.C. In default of payment of fine, the convict will have to undergo further one year imprisonment. He has further been sentenced to undergo rigorous imprisonment for three years with a fine of Rs. 5000/- (five thousand) for the offence punishable under Section 27 of the Arms Act. In default of payment of fine, he will have to under further imprisonment for six months. The sentences have been directed to run concurrently. Appellants/convicts Badri Yadav, Kailash Yadav and Mithilesh Yadav @ Akhilesh Yadav have been sentenced to undergo rigorous for life with a fine of Rs.50,000/- (fifty thousand) each for the offence punishable under Section -302/149 of I.P.C. In default of payment of fine, the convicts will have to further undergo one year imprisonment. They have also been sentenced to undergo rigorous imprisonment for 2 years and 6 months with a fine of Rs.5000/ each for the offence punishable under Section-148 of I.P.C. In default of payment of fine, they will have to undergo further imprisonment for three months each. All the sentences have been directed to run concurrently. At the outset, it is relevant to note that Mr. Amarnath Jha, learned counsel, earlier appearing for the appellants, states that he has already given no objection to the appellants. However, nobody has filed appearance in Cr. Appeal (D.B.) No. 931 of 2018, which is pending for hearing since long. The present appeal is of the year 2018 and out of three appeals, in one appeal, appellant/convict is in custody for more than 12 years. Therefore, we have no option, but to proceed with the matter and, therefore, we have requested Mr. Sandeep Kumar Pandey to assist the Court in the matter and, with his consent, he is appointed as Amicus Curiae. “On 08.05.2011, the informant was returning from Parsa Haat by his brother-in-law’s motorcycle bearing Regn. No. BR 38 A-8010. After reaching the door of Satya Narayan Mandal, S/o Late Moti Mandal of his village at around at 6 O’clock, he was having a discussion about farming activities. All on a sudden 1. Rajendra Yadav S/o- Jagdeesh Yadav 2. Badri Yadav S/o- Late Janak Yadav 3. Kailash Yadav S/o- Badri Yadav 4. Shaili Devi, w/o Badri Yadav 5. Gajen Yadav S/o- Mohan Yadav Vill- Jahad and 6. Badri Yadav’s Son-in-law Mithilesh Yadav S/o- Not known, Vill- Belodih, P.S not known, Dist. Madhepura came there, out of whom Rajendra Yadav S/o Late Jagdeesh Yadav had a country-made rifle in his hand and others had sticks in their hands. They surrounded the informant and started beating him at Satyanarayan Mandal’s door.

ISSUES

  1. Whether the delay in sending the First Information Report (FIR) to the Magistrate was justified and whether it affected the prosecution’s case.
  2. Whether the appellants were falsely implicated in the occurrence due to an election dispute, as claimed by the defence.
  3. Whether the testimonies of the prosecution’s eye-witnesses, who were relatives of the deceased, were reliable and trustworthy, given the contradictions and inconsistencies in their statements.
  4. Whether the medical evidence, including the post-mortem report, supported the prosecution’s timeline and version of events.

LEGAL PROVISIONS

Section 302 of the Indian Penal Code (IPC): Punishment for Murder

This section deals with the punishment for murder. It states that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to a fine.

Section 149 of the Indian Penal Code (IPC): Every member of unlawful assembly guilty of offense committed in prosecution of common object

This section states that if an offense is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offense, is a member of the same assembly, is guilty of that offense.

Section 148 of the Indian Penal Code (IPC): Rioting, armed with a deadly weapon

This section deals with the punishment for rioting, armed with a deadly weapon or with anything which, used as a weapon of offense, is likely to cause death. The punishment can extend to imprisonment for three years, or with a fine, or with both.

Section 27 of the Arms Act, 1959: Punishment for using arms, etc. This section prescribes the punishment for using arms in contravention of Section 5 of the Arms Act, 1959, which deals with the requirement of a license to possess or carry any firearm or ammunition. The punishment can range from imprisonment for not less than three years, which may extend to seven years, and also with a fine.

Section 374(2) of the Code of Criminal Procedure, 1973 (Cr.P.C.): Appeals from convictions This section allows any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge to appeal to the High Court.

 

CONTENTIONS OF THE APPELLANT

Heard Mr. Ravindra Kumar, assisted by Mr. Rajesh Roy, Manoj Kumar and Mr. Sandeep Kumar Pandey, learned counsels for the appellant, Mr. Sujit Kumar Singh, learned A.P.P. for the respondent State and Mr. Shashi Bhushan Kumar, learned counsel for the informant (in Cr. Appeal (D.B.) No.940 of 2018, Mr. Kumar Dhirendra, assisted by Mr. Diwanshu Kumar, learned counsel for the appellants, Mr. Sujit Kumar Singh, learned A.P.P. for the respondent State (in Cr. Appeal (D.B.) No.880 of 2018 and Mr. Sandeep Kumar, learned Amicus Curiae, for the appellant and Mr. Ajay Mishra, learned A.P.P. for the respondent-State in

Cr. Appeal (D.B.) No. 931 of 2018). Learned advocates appearing for the respective appellants have submitted that there is a delay in sending the F.I.R. to the Magistrate Court and the appellants have been falsely implicated in the occurrence in question. Though the informant has stated that six accused persons named in the F.I.R. came with weapons and assaulted the informant as well as one Samindo and they sustained injuries, the injury report of the aforesaid persons were not produced before the Court nor the Doctor was examined. It is further submitted that the informant and Samindo Yadav are not the eye-witnesses, despite which they were projected as eye-witnesses by the prosecution. The aforesaid witnesses are near relatives of the deceased and, therefore, their deposition is required to be scrutinized carefully. It is submitted that looking to the major contradictions in the depositions of the so-called eye-witnesses, it can be said that they are not trustworthy and, therefore, their depositions be discarded. At this stage, it is also submitted that P.Ws. 2, 3 and 4 are projected as eye-witnesses to the occurrence by the prosecution however, from the deposition given by P.W. 10 Bhola Singh, who was the 1st Investigating Officer, it is revealed that he had recorded the statements of the informant Mahesh Yadav and Simindo Yadav only and thereafter he was transferred and the charge of investigation was handed over to another officer namely Arvind Kumar Yadav. Surprisingly, Arvind Kumar Yadav has also not been examined by the prosecution. It is further submitted that thereafter P.W. 9 Dev Raj Ray took over the charge of investigation on 30th of June, 2011 and from the deposition of the said witness, it is revealed that the said I.O. has recorded the statements of the other so-called eye-witnesses only on 01.08.2011. It is, thus, contended that Rajendra Yadav, Bindeshwari Yadav, Garib Yadav and Manoj Yadav are not the eye-witnesses. Even otherwise, there are major contradictions in their deposition and, therefore, the Trial Court ought to have discarded the depositions given by the aforesaid witnesses. Even P.W.11, the doctor Binod Bisnoi who had conducted the post mortem of the dead body of the deceased, has stated that the post mortem was conducted on 09.05.2011 and the said witness has further stated that the time elapsed since death is within 48 hours. Learned counsels, therefore, submitted that the medical evidence does not support the version given by the informant and the so-called eye-witnesses. Learned advocates for the appellants, therefore, urged that the Trial Court has committed grave error while recording the judgment of conviction and order of sentence. Therefore, this Court may quash and set aside the same and thereby allow all the appeals

CONTENTIONS OF THE RESPONDENTS

Learned counsel for the informant and the learned Additional Public Prosecutors have opposed the appeals filed by the appellants. It is submitted that P.W.1 to P.W.5 and P.W. 7 are the eye-witnesses to the occurrence in question and all of them have supported the case of the prosecution. The specific allegation is levelled against the appellant Rajendra Yadav that he fired from his country-made rifle and the bullet hit the chest of the deceased causing his death. The medical evidence also supports and corroborates the case of the eye-witnesses. The Investigating Officers have also deposed the manner in which the investigation was carried out by them and, therefore, there is ample material on record which suggests that the appellants have killed the deceased. It is further submitted that the prosecution has also proved the motive on the part of the appellants to kill the deceased and thereby the prosecution has proved the case against all the appellants beyond reasonable doubt. Hence, no error is committed by the Trial Court while passing the impugned judgment and order. Learned counsels for the respondents, therefore, urged that all these appeals be dismissed. learned counsel for the informant and the learned Additional Public Prosecutors have opposed the appeals filed by the appellants. It is submitted that P.W.1 to P.W.5 and P.W. 7 are the eye-witnesses to the occurrence in question and all of them have supported the case of the prosecution. The specific allegation is levelled against the appellant Rajendra Yadav that he fired from his country-made rifle and the bullet hit the chest of the deceased causing his death. The medical evidence also supports and corroborates the case of the eye-witnesses. The Investigating Officers have also deposed the manner in which the investigation was carried out by them and, therefore, there is ample material on record which suggests that the appellants have killed the deceased. It is further submitted that the prosecution has also proved the motive on the part of the appellants to kill the deceased and thereby the prosecution has proved the case against all the appellants beyond reasonable doubt. Hence, no error is committed by the Trial Court while passing the impugned judgment and order. Learned counsels for the respondents, therefore, urged that all these appeals be dismissed.

COURT’S ANALYSIS AND JUDGEMENT

We have considered the submissions canvassed by the learned counsels for the parties. We have also perused the evidence of prosecution witnesses and also perused the documentary evidence exhibited. P.W. 1 is Simindo Yadav. He has stated in his examination-in-chief that the incident took place one and a half years ago at 06:00 p.m. He was returning from Parsa Haat when he saw that Badri Yadav, Kailash, Shaili Devi, Mithilesh Yadav, Rajendra and Gajen Yadav were present at the door of Badri Yadav. Badri Yadav had caught hold of Ramesh and ordered to shoot him. Ramesh was shot at and he died. The witness was also beaten. Police had come to the place of occurrence. Post Mortem was done. He claims to identify all the accused persons by face and identifies accused Rajendra Yadav present in Court. Death, in my opinion, due to Hemorrhage and shock as a result of above-mentioned firearm injury, we have considered the submissions canvassed by the learned counsels for the parties. We have re appreciated the entire evidence led by the prosecution. We have also perused the material placed on record. It would emerge from the record that P.W. 5 Mahesh Yadav is the informant whose fardbeyan was recorded on 01.08.2011 at 09:00 p.m., wherein he has stated that at about 06:30 p.m., when he was returning on his motorcycle with one Anil Yadav and they came near the house of Satya Narain Mandal, they saw that all the accused named in the F.I.R. came at the place with deadly weapons and they started beating the informant near the house of Satya Narain Mandal. At that time, his brother Ramesh Yadav and Simindo Yadav came there with a view to rescue the informant. Thereafter, Badri Yadav dragged Ramesh Yadav near his house. At that time, Rajendra Yadav fired from his country-made rifle and the bullet hit the chest of the brother of the informant. When Simindo Yadav tried to intervene, all the other accused persons gave stick blows to him. At that time, the other persons came upon hearing the commotion and sound of firing. When they saw, they found that Ramesh Yadav had died because of the gun-shot injury. At this stage, if the deposition given by P.W. 1 Simindo Yadav is carefully examined, in his examination-in chief they said witness has only stated that when he was returning from Parsa Haat, he saw that near the house of Badri Yadav, all the named accused were present and Badri Yadav caught hold of Ramesh Yadav and ordered to shoot him. Thereafter, he was shot at. The said witness was also assaulted. He has further stated that the police were informed after one and a half hours of the occurrence and police came at the place of occurrence around 10-11 p.m. Thus, from the deposition of the said witness, it is revealed that this witness has not given the name of the accused who had fired on the deceased. At this stage, the deposition of P.W. 5 is also required to be examined carefully. P.W. 5 is the informant. The said witness in his examination-in-chief has also given the name of all the accused. He has stated that he also sustained injury because of the assault made by the accused. He has also stated that there was huge blood spilled over the earth and the clothes were also blood-stained. However, he is not aware whether the same were seized by the Investigating Officer or not. It is pertinent to note that merely because the witnesses are near relatives and interested witnesses, their deposition cannot be discarded simply on that very ground. However, deposition of said witnesses requires to be scrutinized closely and carefully. If a witness is trustworthy, his version can be accepted. However, in the present case, from the deposition of the aforesaid two witnesses and the conduct of the said witnesses, we are of the view that they are not trustworthy and there are major contradictions and inconsistencies in their deposition. Hence, we are of the view that they are projected as eye-witnesses, but their presence at the place of occurrence is doubtful. Further, P.W.11 is Dr. Binod Bisnoi who had conducted the post mortem of the dead body of the deceased. The said doctor conducted the post mortem on 09.05.2011 when he was posted at Sadar Hospital. The said witness has stated the time elapsed since death to be within 48 hours. He had conducted the post mortem at 10:15 a.m. Thus, the post mortem was conducted within 16 hours. However, the doctor has stated the time elapsed since death to be within 48 hours. Thus, we are of the view that the medical evidence does not support the version given by the so-called eye-witnesses that the occurrence took place on 08.05.2011 at about 06:30 p.m. From the evidence led by the prosecution, it is further revealed that the Investigating Officer did not seize the blood-stained soil from the place of occurrence nor the blood-stained clothes of the deceased were sent for necessary analysis to the Forensic Science Laboratory. Even there is no recovery/discovery of the weapon allegedly used in commission of the alleged incident from any of the appellants. It is further revealed that it is the specific defence of the appellants that they have been falsely implicated in the present case because of the election dispute. Thus, from the aforesaid evidence led by the prosecution, we are of the view that the prosecution has failed to prove the case against the appellants beyond reasonable doubt, despite which the Trial Court has recorded the impugned judgment of conviction and order of sentence. We have also gone through the reasoning recorded by the Trial Court and we are of the view that the Trial Court has committed grave error while passing the impugned judgment and order. Hence, the same deserve to be quashed and set aside. Accordingly, the impugned judgment of conviction dated 13.06.2018 and order of sentence dated 14.06.2018 passed by the learned 3rd Additional District and Sessions Judge, Araria, in connection with Sessions Trial No. 1151/2012, T.R. No.64/2017 (arising out of Bhargama P.S. Case No. 43/2011) are quashed and set aside. The appellants are acquitted of the charges levelled against them by the learned Trial Court. Since the appellant, namely Rajendra Yadav (in Cr. Appeal (D.B.) No. 940 of 2018) is in jail, he is directed to be released from custody forthwith, if his presence is not required in any other case. Rest all the appellants are on bail. They are discharged from the liabilities of their bail-bonds. he Patna High Court Legal Services Committee is, hereby, directed to pay ₹ 3,000 (Rupees Three Thousand) to Sandeep Kumar Pandey, learned Amicus Curiae as consolidated fee for the services rendered by him.

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Judgement Reviewed by – HARIRAGHAVA JP

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Delhi High Court invokes Dostoevsky’s ‘Crime and Punishment’ to reduce sentence of 5 JeM operatives

Delhi High Court invokes Dostoevsky’s ‘Crime and Punishment’ to reduce sentence of 5 JeM operatives

Case titleBILAL AHMAD MIR ALIAS BILAL MIR ALIAS BILLA VS NATIONAL INVESTIGATING AGENCY NEW DELHI

Case no.: CRL.A. 53/2023

Dated on: 20TH May 2024

Quorum:  Hon’ble Mr. Justice SURESH KUMAR KAIT And Hon’ble Mr. Justice MANOJ JAIN.

FACTS OF THE CASE

All the appellants were arraigned as accused in case RC No.08/2019/NIA/DLI. When the learned Trial Court heard arguments and ascertained the charges, they all pleaded guilty. They were accordingly convicted for various offences under IPC (Indian Penal Code, 1860) and (UAPA) Unlawful Activities (Prevention) Act, 1967). However, with respect to appellant Ishfaq Ahmad Bhat (A-7), when the appeal was filed under Section 21 of the National Investigation Agency Act (NIA Act), he challenged the legality of conviction as well, contending that the Trial Court had proceeded on the alleged plea of guilty in a mechanical manner. He asserted that when application under Section 229 of Cr.P.C. was moved before the learned Trial Court, it was, in essence a plea of guilt by way of plea bargaining. According to him, the conviction was not sustainable on the basis of such plea of guilt. Fact, however, remains that during course of consideration of the appeal, additional affidavit was filed stating therein that the appellant was no longer desirous of challenging his plea of guilt and consequent conviction and that he was confining his appeal to the extent of sentence qua those offences for which he had been given life sentence. The present appeals are under Section 21 of National Investigation Agency Act (NIA Act) and are in the nature akin to one mentioned in Section 375 Cr.P.C. which specifies that if any accused pleads guilty and is convicted on the basis of such plea of guilt, there shall be no appeal, except as to the extent or legality of the sentence. 10. Thus, the scope of all the aforesaid appeals is very limited in sphere and only the aspect related to the extent or legality of the sentence is required to be seen, the prayer being that they be given minimum sentence for offence under Section 121A IPC and in relation to appellant Muzaffar Ahmed Bhat, for offence under Section 23 UAPA as well. Eventually, when the charges were ascertained vide order dated 03.09.2022, the learned defense counsel informed the court that they all wanted to plead guilty. They were also made aware in vernacular that if they insisted for pleading guilty, they could be straightaway held guilty and could be sentenced to the maximum of the punishment prescribed under offences for which they had been charged. However, they remained firm. The Appellants, who have spent almost four years in prison, challenge the legality and extent of the sentence with respect to those offences for which they have been given maximum sentence i.e. imprisonment for life. Ms. Nitya Ramakrishnan, Learned Senior Counsel and Sh. Kunal Malik, learned Counsel for appellants have, very fairly, confirmed the same. A bare perusal of the aforesaid chart would, distinctly, reveal that there were many offences which attracted life sentence but despite that learned Trial Court awarded sentence of rigorous imprisonment of five years for most such offences. Reference be made to sentences imposed for commission of offences under Section 18, 18B, 19 of UAPA and Section 4 of ESA. As far as Section 23 UAPA is concerned, only appellant Muzaffar Ahmad Bhat (A-4) has been held guilty and sentenced to life imprisonment.

 

CONTENTIONS OF THE APPELLANT

Ms. Nitya Ramakrishnan, learned Senior Counsel has contended that the appellants never attempted to strike any kind of bargain, which even otherwise was not permissible in law. They all were, actually speaking, utmost remorseful and repentant for the alleged acts attributed to them and without any expectation, they had pleaded guilty before the Court. They were made aware about the fact that they can be meted out maximum sentence, i.e. life sentence. But despite knowing fully well the aforesaid maximum sentence, they chose to plead guilty. It is also contended that though the plea of guilt was without any bargain or expectation, nonetheless, the learned Trial Court did not give due weightage to the mitigating circumstances and handed out life, merely on the basis of the gravity of few such offences i.e. offences under Section 121A IPC and Section 23 UAPA. She contends that if the allegations are considered in toto, it would become very apparent that the crux of the allegations, with respect to all offences together, remained virtually the same. It is argued that Section 18 of UAPA also penalizes conspiracy of a terrorist act or any act preparatory to a commission of a terrorist act. A „terrorist act‟ has been defined under Section 15 of UAPA which is almost akin to what is contained under Section 121A IPC. As per Section 15 of UAPA, „terrorist act‟ is one which is done with the intent to threaten or likely to threaten the unity, integrity, security or sovereignty of India and while learned Trial Court chose to give sentence of mere five years with respect to similar kind of offence under UAPA, it, for totally inexplicable reasons, awarded life sentence under Section 121A IPC. t is, thus, contended that the gravity of the matter should not have been and could not have been the „sole governing circumstance‟. During the course of the arguments, learned counsel for the appellants, in all fairness, contended that their sole contention is that with respect to offences under Section 121A IPC and Section 23 UAPA, any other sentence, instead of maximum sentence may be awarded, while considering the obvious special reasons existing in favour of appellants.

CONTENTIONS OF THE RESPONDENTS

Sh. Gautam Narayan, learned SPP for NIA has, on the other hand, justified the quantum of sentence. It is argued that the learned Trial Court has taken into consideration all the relevant factors which were germane for deciding the quantum of sentence and since the appellants had, without any expectancy, pleaded guilty before the Court, it does not lie in their mouth to now raise any grudge with respect to the extent of the sentence. It is argued that the appeals are totally misplaced and there is no reason to interfere with the sentence awarded by the learned Trial Court. It is also argued that the appellants were highly radicalized workers of a proscribed terrorist organization which had carried out several terrorist acts in India and the learned Trial Court had shown enough of compassion as it did not award maximum sentence for various other offences. During course of arguments, Sh. Narayan also made reference to the allegations against the appellants and contended that the allegations were actually enormous and merely because the appellants had chosen to plead guilty, it does not automatically follow that they had become entitled to lesser sentence. It is claimed that undue sympathy would rather do more harm than good and reliance in this regard has been placed upon Mohd. Jamiludin Nasir (supra). There cannot be qualm with respect to the above proposition but fact remains that the factual matrix of that case was entirely different. The charges therein were also for commission of offences under Section 121 IPC and Section 302 IPC, which attracted death sentence. The incident, narrated therein, resulted in loss of life of five police personnel apart from injuring thirteen police personnel and civilians. However, Hon’ble Supreme Court, taking into consideration the facts and circumstances of that case, came to the conclusion that it was not a case warranting extreme penalty of death. Moreover, in the present case, the charge is with respect to the conspiracy i.e. Section 121A IPC and not any actual act as contemplated under Section 121 IPC. It was also observed in the aforesaid case that sentencing is a delicate task requiring an interdisciplinary approach and calls for special skills and talents. A proper sentence is the amalgam of many factors, such as, the nature of offence, circumstances—extenuating or aggravating—of the offence, prior criminal record of the offender, age and background of the offender with reference to education, home life, sobriety, social adjustment, emotional and mental condition, the prospects for his rehabilitation, etc. Obviously, the most important mitigating circumstance is the fact that all the appellants pleaded guilty at the first available opportunity, without any expectation. They were very much regretful for their acts. We have carefully perused the contents of the application moved by the appellants under Section 229 Cr.P.C. before the learned rial Court whereby they had expressed their wish to plead guilty.

LEGAL PROVISIONS

  1. Indian Penal Code (IPC), 1860

Section 121A IPC: Punishes conspiracy to commit offenses against the state, such as waging war against the Government of India.

Section 121 IPC: Punishes waging, or attempting to wage war, or abetting waging of war against the Government of India. However, the charge under this section in the case study is related to conspiracy under Section 121A.

  1. Unlawful Activities (Prevention) Act (UAPA), 1967

Section 18 UAPA: Punishes conspiracy or attempt to commit, or advocating, abetting, advising, or inciting the commission of a terrorist act or any act preparatory to a terrorist act.

Section 18B UAPA: Relates to punishing individuals who recruit any person or persons for a terrorist act.

Section 19 UAPA: Penalizes individuals harboring or concealing, or attempting to harbor or conceal, any person knowing that such person is a terrorist.

Section 23 UAPA: Specifically deals with certain offenses involving terrorist organizations, which can include participation in activities, membership, and providing support to a terrorist organization. In the case study, Muzaffar Ahmad Bhat was sentenced to life imprisonment under this section.

  1. Criminal Procedure Code (Cr.P.C.), 1973

Section 229 Cr.P.C.: Provides the accused with the option to plead guilty. The court may, in its discretion, convict the accused on his plea of guilt.

Section 375 Cr.P.C.: Limits appeals when a conviction is based on a guilty plea, except regarding the extent or legality of the sentence.

  1. National Investigation Agency Act (NIA Act), 2008

Section 21 NIA Act: Deals with appeals against judgments, sentences, or orders, including the conviction of persons tried by Special Courts under this Act.

COURT’S ANALYSIS AND JUDGEMENT

The enormity of the allegations cannot be the sole determining factor for finalizing the quantum of sentence. Thus, when it comes to sentencing, the yardstick has to be somewhat different and a balanced one. The Court is required to take note of all the mitigating circumstances including the age and the previous antecedents of the appellants. Their candid and unconditional plea of guilt should also be in the reckoning. If the case had been put to trial, it would have taken years together in concluding the matter. Thus, in hindsight, there is significant saving of precious judicial time. A division bench comprising of Justice Suresh Kumar Kait and Justice Manoj Jain disposed of the appeals moved by Bilal Ahmad Mir, Sajjad Ahmad Khan, Muzaffar Ahmad Bhat, Mehraj- ud-Din Chopan and Ishfaq Ahmad Bhatt challenging the trial court order awarding them life sentence. Citing Russian novelist Fyodor Dostoyevsky’s quote from the book “Crime and Punishment”, the Delhi High Court on Monday modified and reduced the sentence awarded to five members of terror organization Jaish-e-Mohammed (JeM) from life imprisonment to 10 years of rigorous imprisonment for the offence under Section 121A of Indian Penal Code. Nonetheless, it will be hazardous to assume that these convicts, merely because of their despicable past, have no future. They do need to be given „a ray of hope‟. In the case in hand, we are fully cognizant of the fact that the appellants had pleaded guilty at the first available opportunity, without any expectation. There is nothing on record which may suggest that they are beyond redemption. India has shown enough of progression in all spheres and our justice delivery system is no exception. It also strongly believes that, more often than not, the eventual consequence of any penal sanction should be to reform any individual, instead of shutting him out by putting him inside for life. that as it may, keeping in mind the gravity of the matter, though, appellants did not deserve any unjustifiable leniency, at the same time, considering their candid confession at first opportunity, their relatively clean antecedents, inclination of reformation and their young age, the life sentence was not warranted either. The man who has a conscience suffers whilst acknowledging his sin. We refer to a quote by Fyodor Dostoyevsky, the author of „Crime and Punishment‟ and in chapter 19, Dostoevsky writes that “if he has a conscience he will suffer for his mistake; that will be punishment — as well as the prison”. Consequently, we hereby dispose of all the appeals with modification that for offence under Section 121A IPC, appellants are directed to serve sentence of rigorous imprisonment for ten years with fine of Rs. 2,000/- and to further undergo SI for a period of one year in case of default of payment of fine. Other terms and monetary imposition of fine for other offences for all the appellants shall remain unaltered. Appeals stand disposed of in aforesaid terms.

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Judgement Reviewed by – HARIRAGHAVA JP

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Bail Can Be Cancelled by Same Court Which Granted It If There Are Serious Allegations Even If Accused Hasn’t Misused Bail: Supreme Court

Bail Can Be Cancelled by Same Court Which Granted It If There Are Serious Allegations Even If Accused Hasn’t Misused Bail: Supreme Court

Case title: AJWAR VS WASEEM AND ANOTHER

Case no.:  Criminal Appeal Nos. of 2024 arising out of Petition for Special Leave to Appeal (Criminal) Nos. 513, 2437, 13404, and 16310 of 2023

Dated on: 17TH May 2024

Quorum:  Hon’ble Ms. Justice [HIMA KOHLI And Hon’ble Mr. Justice. AHSANUDDIN AMANULLAH

FACTS OF THE CASE

Bail was granted to accused Waseem on grounds of parity with his father, Niyaz Ahmad, which was later set aside by the Court. An appeal by the appellant-complainant led to the restoration of the bail application of accused Waseem to be decided afresh by the High Court. The case involves multiple accused individuals (Nazim, Aslam, Abubakar) seeking bail on similar grounds under Section 439 Code of Criminal Procedure, 1973 for a case involving various offences. Different Benches of the High Court allowed the bail applications of Waseem, Nazim, Aslam, and Abubakar on separate dates. The appellant-complainant approached the Court aggrieved by the bail orders granted by the High Court on these individuals. The case pertains to an incident on 19 May, 2020, with ongoing investigation and court proceedings involving delays and attempts to transfer the trial. The conduct of the respondents in delaying the trial was criticized by the Additional Sessions Judge in Meerut. Co-accused Niyaz Ahmad filed a transfer petition for a change in the trial judge due to alleged bias. The post mortem reports of the deceased sons of the appellant showed fatal firearm injuries. Eyewitness testimonies implicated Waseem, Nazim, Aslam, and Abubakar in the incident. Multiple arrests were made, and illegal firearms were recovered from Aslam. Trial proceedings involved examination of witnesses and the statement of the informant. Previous court orders for bail were challenged and overturned based on findings. The case is pending trial before the Additional Sessions Judge in Meerut. Allegations of enmity and a targeted attack by the accused are central to the case.

 

CONTENTIONS OF THE APPELLANT

Appearing for the appellant-complainant, Mr. Shreyas U. Lalit and Mr. Ansar Ahmad Chaudhary, learned counsel submitted that this is a case of double murder of two young sons of the appellant-complainant at the hands of the accused persons who harbored previous enmity against him and his family members. Waseem (A-7) was arrested on 27th May, 2020. The other accused persons were arrested on different dates. After their arrest, the police conducted a search of the respondents and recovered five illegal country-made pistols, seven live cartridges and five used cartridges from the possession of Aslam (A-2). A specific role has been attributed to each of the four respondents herein that resulted in the death of the appellant’s two sons and serious injuries to his nephew. All the four respondents herein were named in the FIR, besides the other co-accused. During the course of investigation, the statements of eleven independent witnesses were recorded under Section 161 Cr.P.C. wherein an active role has been attributed to all the four respondents. Later on, the appellant-complainant entered the witness box and appeared as PW-1. He has reiterated the role played by the respondents herein in committing the offence. Two other independent eye witnesses, namely, Abdullah (PW-2), Asjad (PW-3) and Fahim Uddin (PW-4) have supported the testimony of the appellant (PW-1). Learned counsel for the appellant-complainant further states that the High Court has completely overlooked the fact that the respondents-accused parties were the aggressors who had forcibly entered the house of the appellant-complainant and indiscriminately fired at him, his sons and other persons who had gathered at his house to break the fast. They have criminal antecedents and several cases are registered against them. Even before completion of a period of six months granted by the High Court, by an earlier order dated 7th April, 2022 passed on an application moved by the appellant complainant under Section 482 Cr.P.C for issuing directions to the trial Court to complete the trial in a definite period, the High Court has proceeded to grant bail in favour of Waseem on the grounds of parity with his father; similar orders have been passed in favour of Nazim, Aslam and Abubakar. It has also been pointed out that from the side of the accused persons, a cross case was registered on the basis of an application moved under Section 156(3) of the Cr.P.C. The matter was investigated and the police filed its final report. He submitted that this conduct of the respondents was adversely commented upon by the Additional Sessions Judge, Court No.15, Meerut in his order dated 23rd August, 2022, wherein it was observed that five dates were taken by the accused but they failed to cross-examine the appellant – complainant and the accused were cautioned that if the cross-examination would not be completed, then their right to cross-examine him would be closed. To delay the trial, the co-accused, Niyaz Ahmad filed a transfer petition before the Sessions Court, requesting that the trial be conducted by some other Additional Sessions Judge, on the plea of bias.

CONTENTIONS OF THE RESPONDENTS

As for the subsequent conduct of the respondents, it was pointed out that after being released on bail, one of the prime eyewitnesses, Abdullah (PW-2) was sought to be intimidated by them and their supporters. Abdullah (PW-2) filed a complaint on 21st March, 2023 which was registered as an FIR, wherein it was alleged that five accused persons i.e. three respondents herein (Waseem, Nazim and Aslam) and the co-accused, Hamid and Ayyub had threatened him in open Court. After he left the Court premises, he was thrashed by them. On an application moved by PW-2, he was extended protection by the Court. The present petitions have been strongly opposed by Mr. Siddharth Luthra, Senior Advocate appearing for the accused-respondents Waseem, Nazim and Aslam and Mr. Sitab Ali Chaudhary, learned counsel for the accused-respondent Abubakar. Learned counsel submitted that any delay in completing the trial cannot be attributed to the respondents and the adjournments referred to by the learned trial judge in the order dated 23rd August 2022 were not on account of the respondents. In fact, the prosecution witness was available only on two dates for his cross-examination and only one date was taken by the accused, Niyaz Ahmed on medical grounds. He submitted that accused Waseem did not misuse the liberty granted to him by the High Court vide order dated 22nd August, 2022 and when his bail order was set aside by this Court on 14th October, 2022 and remanded back to the High Court for passing a reasoned order, he had surrendered on time. Learned counsel submitted that the appellant-complainant himself is a well-known criminal of the area, having several cases registered against him as also his two sons. The criminal history of the appellant-complaint and his two deceased sons, Abdul Majid and Abdul Khaliq have been detailed in paras 19 to 21 of the counter affidavit. As per the respondents, the appellant-complainant is involved in 10 criminal cases and his two deceased sons, Abdul Majid was involved in 21 criminal cases and Abdul Khaliq was involved in 2 cases. Next, contending that bail once granted cannot be cancelled until there are supervening circumstances and in the present case there are no such circumstances that require setting aside of the impugned orders, learned counsel for the respondents supported the impugned orders and requested that the present appeals be dismissed. It was additionally submitted that even when the accused Waseem was released on bail, he had abided by the conditions of bail imposed on him and did not misuse the liberty in any manner. On merits, learned counsel for the respondents submitted that there was previous enmity between the parties; those three persons had been falsely introduced in the FIR against whom no case was made out and after investigation, their names were dropped from the chargesheet; that the prime eye-witnesses (PW-1, 2, 3 and 4) are related to the deceased being their father/uncle/cousin, etc. Several loopholes in the prosecution version were sought to be highlighted by the learned counsel for the respondents relating to conducting the inquest of the deceased Abdul Majid, the difference in the time between reporting the crime that took place on 19th May, 2020, at 2030 hours as against the time when the investigation had allegedly started (1818 hours); the alleged manipulation in the Medico Legal Reports of the injured, Asjad; the role of Asjad (nephew of the appellant complainant) who had allegedly called twice on the mobile phone of Abubakar (brother of the accused, Waseem) which fact could be verified from the CDR details of the mobile phone and showed that the injured Asjad was the aggressor who had threatened to kill Waseem’s brother. It was also contended that the appellant-complainant and 15 other persons with him were present at the mosque and not at his residence, as recorded in the chargesheet and they were the ones who had badly assaulted Waseem’s brother, entered his residence and thrashed his family members. Learned counsel for the respondents submitted that the real reason behind the dispute between the appellant-complainant and his family members and the accused and his family members related to political rivalry as the appellant-complainant had lost the election for the post of Village Pradhan and then proceeded to falsely implicate the accused persons. Learned counsel argued that where there are two bullet injuries, one each to the two deceased by three assailants, there is a possibility of over-implication of the accused persons. Finally, an assurance has sought to be extended to this Court that the respondents will not abscond as they are permanent residents of the village and they shall continue cooperating for timely completion of the trial.

ISSUES

  1. whether Single Judge disposed of the bail application in an unsatisfactory manner?
  2. whether bail should be granted in a serious criminal offence matter?
  3. whether The High Court’s jurisdiction under Section 439(1) of the Cr.P.C. is in question for granting regular bail Examining the justification of the High Court in granting bail to the respondents?

LEGAL PROVISIONS

Section 439 of the Code of Criminal Procedure, 1973: This section deals with the power of the High Court and Sessions Court to grant bail. It outlines the factors to be considered when granting bail, such as the nature and gravity of the offense, likelihood of the accused fleeing from justice, etc.

Section 154 of the Code of Criminal Procedure, 1973: The mandate of Section 154 is manifestly clear that if any information disclosing a cognizable offence is laid before an officer in charge of a police station, such police officer has no other option except to register the case on the basis of such information. The provision of Section 154 is mandatory.

Section 173 of the Code of Criminal Procedure, 1973: Every investigation under this Chapter shall be completed without unnecessary delay. [(1-A) The investigation in relation to [an offence under sections 376, 376A, 376AB, 376B, 376C, section 376D, section 376DA, section 376DB or section 376E of the Indian Penal Code shall be completed within two months.

COURT’S ANALYSIS AND JUDGEMENT

The Court must consider the seriousness and gravity of the crime in question. The High Court overlooked the period of custody of the accused for a grave offence. The High Court granted bail based on insufficient reasoning and questionable factors. The accused involved in previous criminal activities were granted bail in this case. The High Court ignored key eyewitness testimonies and the seriousness of the offence. The appellate Court found the bail orders to be unjustified and lacking reasonable grounds. The accused had spent less than three years in custody for a double murder charge. The police’s investigation was criticized for being one-sided. The delay tactics by the accused in the trial process were observed. The High Court granted bail without proper consideration of the gravity of the offence and relevant material. The principles guiding the discretion of granting bail were disregarded by the High Court. The power to grant bail under Section 439 Cr. P.C is of wide amplitude. The discretion of the High Court or a Sessions Court in granting bail is considerable but not unfettered. Considerations for cancelling bail include supervening circumstances or post-grant conduct of the accused. An order granting bail must reflect due application of judicial mind and well-established legal principles. Appellate Courts may set aside bail orders based on illegality, perversity, or irrelevant material. Considerations for setting aside bail orders include supervening circumstances, accused’s conduct on bail, attempts to delay trial, threats to witnesses, and tampering with evidence. The list of considerations provided is illustrative and not exhaustive. At the stage of granting bail, only a prima facie case needs to be examined, detailed reasons causing prejudice to the accused should be avoided in the bail order. The various factors examined collectively indicate that the respondents do not deserve the concession of bail. The observations made are limited to examining the infirmities in the impugned orders and do not indicate an opinion on the merits of the matter pending trial. All four impugned orders are quashed and set aside. Original Names are to surrender within two weeks from the date of this order. Respondents can apply for bail at a later stage if new circumstances emerge.

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Judgement Reviewed by – HARIRAGHAVA JP

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