Kapil Kumar vs State
2010 Latest Caselaw 382 Del

*       HIGH COURT OF DELHI : NEW DELHI

        Bail Application No. 2326/2009

%      Judgment reserved on:            14th January, 2010

       Judgment delivered on:           22nd January, 2010

           Kapil Kumar,
           S/o Sh. Sohan Lal Gupta,
           R/o B-265/22,
           Karnal Farm, Tigri,
           New Delhi.
                                                                ....Appellant.

                                Through:      Mr. Vijay Aggarwal with Mr.
                                              Gurpreet Singh and Mr. Vishal
                                              Garg, Adv.
                       Versus

           State
           Through:
           its Standing Counsel (Criminal)
           High Court of Delhi.
           New Delhi                                          ....Respondent.

                                Through:      Ms. Fizani Husain, APP for the
                                              State.
                                              SI Sridev Karam, PS Neb Sarai.

Coram:
HON'BLE MR. JUSTICE V.B. GUPTA

1. Whether the Reporters of local papers may
   be allowed to see the judgment?                    Yes

2. To be referred to Reporter or not?                 Yes

3. Whether the judgment should be reported
   in the Digest?                                     Yes

V.B.Gupta, J.

This order shall dispose of application for grant of anticipatory bail filed

on behalf of the petitioner.

2. Prosecution case in brief is that, on 12th October, 2009, at about 9 PM,

police received information regarding quarrel and fighting at B. No. 265/37,

Colonel Farm House, Tigri, New Delhi. On reaching the spot police found that

injured persons had been taken to Trauma Centre AIIMS, New Delhi by PCR

Van. At the hospital, the injured Prempal and his brother Dharampal were found

admitted.

3. Injured Prempal who was found to be fit gave his statement stating that his

neighbour Gopal had come to his brother Amarpal's shop to buy cigarette at about

9 PM where Gopal quarreled over money with Amarpal and subsequently, Gopal

called other family members to teach Amarpal a lesson. Amit (brother of Gopal)

armed with a cricket bat, Kapil (brother of Gopal) armed with an iron rod and

Sohan Lal (father of Gopal) came at the spot. Amar Pal and Prempal was caught

hold by Sohan Lal and Gopal, Kapil and Amit started beating them. Amarpal

immediately went inside his house and bolted the door from inside. In the

meantime, Dharampal (brother of Prem Pal) also came at the spot and both

Dharampal and Prempal sustained injuries on head and other parts of the body at

the hands of the accused persons. After beating them, accused set the wooden

thakth in front of the house of Amarpal on fire and went away. Accordingly, case

under Section 308/436/34 IPC was registered against the accused persons.

4. It is contended by learned counsel for the petitioner that no offence under

Section 308 IPC is made out against the petitioner as there is no allegation in the

statement of the complainant that injuries were inflicted by the petitioner with

intention to cause death. Allegations made in the complaint are highly

improbable and same cannot be relied upon prima facie.

5. All other co-accused persons who were arrested in this case have been

granted bail. Petitioner is ready to join the investigation and injured have also

been discharged from the hospital.

6. In support of its contentions, learned counsel for petitioner referred the

following judgments;

     (i)        Ashok Kumar Gupta Vs. State,
                2007 (141) DLT 94;
     (ii)       Roop Madan Vs. State,
                1997 AD (Cr.) DHC 195;
     (iii)      Gurbaksh     Singh    Sibia    Vs.     State    of     Punjab.
                1980 CRLJ 1125
     (iv)       Amarinder Singh and Anr. Vs. State of Punjab and Ors.;
                Crim. MC No. 21713 M of 2007;

7. On the other hand, it is contended by learned counsel for the State that

petitioner has been named in the FIR. He assaulted the complainant on the head

with an iron rod with the result that he sustained grievous injuries, as opined by

the doctor. Custodial interrogation of petitioner is required and weapon of

offence is to be recovered.

8. Other contention is that, petitioner is deliberately evading his arrest, as a

result of which non bailable warrant has been issued against him. Under these

circumstances, no ground is made out for granting anticipatory bail to the

petitioner.

9. As per FIR, serious allegations have been made against the petitioner who

has been named in the FIR. Petitioner was armed with an iron rod and he caused

serious injuries to the complainant. As per opinion of doctor injured sustained

grievous injuries. The injuries are on head which is a vital part of the body.

10. Though, it is correct that co-accused persons have been granted bail in this

case but it would be pertinent to point out that they submitted to the law of the

land and joined the investigation.

11. Present incident is of 12th October, 2009. More than three months have

been passed but petitioner, who is prima facie, involved in the commission of

offence is absconding. Non bailable warrant has been issued to him. This goes on

to show that he has scant respect for the rule of law.

12. None of the judgments cited by learned counsel for petitioner are

applicable to the facts of the present case.

13. Supreme Court in a recent decision, HDFC Vs. J.J. Mannan @ J. M.

John Paul and Anr.; 2009 (14) SCALE 724, observed;

"The object of Section 438 Cr. P. C has been repeatedly explained by this Court and the High Courts to mean that a person should not be harassed or humiliated in order to satisfy the grudge or personal vendetta of the complainant. But at the same time the provisions of Section 438 Cr. P. C. cannot also be invoked to exempt the accused from surrendering to the Court after the investigation is complete and if charge-sheet is filed against him. Such an interpretation would amount to violence to the provisions of Section 438 Cr. P. C., since even though a charge-sheet may be filed against an accused and charge is framed against him he may still not appear before the Court at all even during the trial. Section 438 Cr. P. C. contemplates arrest at the stage of investigation and provides a mechanism for an accused to be released on bail

should he be arrested during the period of investigation. Once the investigation makes out a case against him and he is included as an accused in the charge sheet, the accused has to surrender to the custody of the Court and pray for regular bail".

14. Since, custodial interrogation of accused is required and weapon of

offence is yet to be recovered, no ground is made out for granting anticipatory

bail.

15. Before parting with, I must express my deep anguish at the functioning of

police with regard to the execution of non bailable warrants. It is very rare that

police in pursuance of non bailable warrants issued by various courts, ever

execute the warrant, arrest the accused and produce him before the Court. It is a

common knowledge that police officials use non bailable warrants issued by the

Courts as a blank cheque and misuse the same. Whenever police wants to arrest

any accused person then they don't need non bailable warrant. They will just pick

up the accused during dead hours of night and detain him for interrogation.

16. In the present case, petitioner who has been named in the FIR from day

one, is absconding for last three months. There is no reason to believe that police

is not aware of the residential address of the petitioner, as petitioner has been filed

bail applications in this court as well as in the court of sessions. There is nothing

on record to show as to what prevents the police from arresting the petitioner,

after dismissal of his earlier bail application as on 19th November, 2009. With

such acts, police is deliberately weakening the prosecution case and due to

inaction on the part of the police in not executing the warrants, the accused are

having a free run, while victims of crime are always under constant fear. The only

inference which can be drawn under these circumstances is that, the police is hand

in glove with the petitioner.

17. Recently, there were press reports in the media that more than Thirteen

Thousand Proclaimed Offenders (P.O) are roaming freely in Delhi. It speaks

volume about the functioning of the police and shows how inefficient and helpless

is our police in apprehending the known criminals. Strong measures are required

to be taken for proper execution of non bailable warrants issued by various courts

from time to time. It is hoped that police will apprehend the petitioner at an

earliest and shall see to it that he faces the trial in accordance with law.

18. With these observations, bail application of petitioner stands dismissed.

22nd January, 2010                                                      V.B.Gupta, J.
ab