Sushant Chandana vs State & Anr.
2011 Latest Caselaw 5949 Del

*               THE HIGH COURT OF DELHI AT NEW DELHI

+                               Crl.M.C. No. 3153/2011

                                                    Date of Order: 7.12.2011

BHUPENDER SINGH & ORS.                                         ...... Petitioner
                  Through:                  Mr. Pradeep Jain, Advocate.

                                       Versus

STATE & ANR.                                             ...... Respondent
                                Through:    Ms. Fizani Husain, APP.

                                WITH

                        Crl.M.C. No. 1670/2011

SUSHANT CHANDANA                                              ...... Petitioner
                                Through:    Mr.Rajesh Harnal, Advocate.

                                       Versus

STATE & ANR.                                             ...... Respondent
                                Through:    Ms. Fizani Husain, APP.

                                AND

                      Crl.M.C. No. 3123/2011

ANIL MODI                                               ...... Petitioner
                                Through:    Mr. Rajesh Harnal, Advocate.

                                       Versus

STATE & ANR.                                             ...... Respondent
                                Through:    Ms. Fizani Husain, APP.

CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA


M.L. MEHTA, J. (Oral)

1. These three petitions are directed against the order dated 30.4.2011

of learned ASJ, Rohini Courts, Delhi.

2. The petitioners are arrayed as accused persons in case FIR No.

172/2011, under Sections 307/34 IPC, P.S. Model Town. They were granted

bail by the learned M.M. vide order dated 21.4.2011. The complainant

challenged the said order in revision before the learned ASJ, who vide

impugned order dated 30.4.2011, cancelled the bail of all the petitioners and

thereby set aside the order dated 21st April, 2011 of learned M.M. The

petitioners filed bail applications No. 721/2011 and 736/2011 before this

court and vide orders dated 24th May, 2011 and 27.5.2011, they were granted

anticipatory bail by this court. Subsequently, on 13th September, 2011, they

withdrew the said bail applications and as per the liberty granted by this

court, they have filed the present petitions.

3. The present FIR was registered on the complaint of Rupesh

Chaudhary. Besides the petitioners, the other persons arrayed as accused are

Rajinder Singh, Jaspal Singh Aneja and Gurjeet Singh Aneja. All the three

of them are on anticipatory bail granted by this court vide order dated

3.6.2011.

4. The allegations are that on 20th April, 2011 at about 9.20 p.m., the

complainant had come to his new house D-14A/20, Model Town II with his

uncle Ajay and two friends and when they were returning, they found

accused Jaspal, Gurjeet, Anil Modi and Rajender Singh alongwith 8-10

persons standing on the corner of the road. On seeing the car of the

complainant, accused Gurjeet took out his pistol and all of them came

towards their car. Gurjeet tried to open the door of his car, which he

(complainant) locked from inside. Accused Jaspal and Anil Modi came in

front of the car and tried to stop it whereupon Ajay, who was driving the car

accelerated the speed. On this, all of them exhorted Gurjeet to fire at the

complainant. Gurjeet fired twice towards the complainant‟s direction but

they all escaped unhurt. Some one hit their car with something from

behind. The complainant alleged that all of them attacked them with the

intention to kill them.

5. The petitioners were produced before the learned M.M. on 21st April,

2011. He noticed some lapses on the part of the Investigating Officer i.e. the

arrest memo did not find mention of the time and place of arrest of the

petitioners, the case diaries had not been prepared, the vehicle in which the

complainant had been sitting at the time of incident had not been seized, the

investigation was not completed within 24 hours of the arrest of the accused

persons and the statement of the witnesses had not been recorded. Taking

note of these facts, the learned M.M. released the petitioners on bail on the

conditions that they shall not commit the similar offences, they would take

part in the investigation as and when required, and further they would not

intimidate witnesses or cause the disappearance of evidence and shall not

leave the territory of Delhi without informing the concerned SHO.

6. The learned ASJ cancelled the bail orders of the learned M.M. mainly

on the ground that the learned M.M. did not have the power to grant bail to

the petitioners in the offence under Section 307 IPC. The learned ASJ was

of the view that it was not only that the offence under Section 307 IPC was

exclusively triable by the Court of Sessions, but that the accused persons

while attempting to commit murder have also caused hurt to the complainant

in terms of the definition of "hurt". He was of the view that as per Section

319 IPC, „hurt‟ includes bodily pain, disease and infirmity. While recording

that there was no bodily pain or disease suffered by the complainant in the

incident, he was of the view that the complainant could be said to have

suffered infirmity at the hands of the accused persons. Learned ASJ relied

upon the case of Jashanmal Jhamatmal Vs. Brahmanand Sarupanand,

AIR 1944 Sind 19 Page 21, wherein it was upheld as under:

"Infirmity denotes an unsound or unhealthy state of body or mind and clearly a state of temporary mental impairment or hysteria or terror would constitute infirmity, within the meaning of that expression in Section 319 IPC".

7. The learned ASJ proceeded to observe that when a person has been

fired at twice, at the exhortation of the aggressive party, he would certainly

be terrorized, shocked and suffer temporary mental impairment and further

that the definition of "injury" as given in Section 44 IPC also includes any

harm of the mind. He observed that it cannot be said that because there was

no physical injury inflicted upon the complainant, no harm can be said to

have been caused to him by firing at him. Based on these observations, he

opined that the complainant certainly suffered infirmity within the meaning

of Section 319 IPC and so it can be said that hurt was caused to him. Based

on this premise, he arrived at a conclusion that the offence committed by the

petitioners was punishable either with life imprisonment or imprisonment

upto 10 years or fine and so, the M.M. had no jurisdiction to grant bail under

Section 437(1)(i) CrPC to the petitioners unless the case falls under any of

the provisos. He opined that since there was nothing to bring the case within

any of the provisos, the order of bail passed by the learned M.M. was

without jurisdiction. Accordingly, he ordered cancellation of bail granted to

the petitioners.

8. I have heard learned counsel for the petitioners and also APP for the

State and perused the records. The question that arises for consideration

here is as to whether in the given facts and circumstances, the M.M. was

competent and had jurisdiction to grant bail in an offence under Section 307

IPC which is non-bailable and exclusively triable by the Court of Sessions.

The Section under which a Magistrate has the authority to grant bail in such

cases is Section 437 CrPC. The relevant part thereof reads thus:

"437. When bail may be taken in case of non-bailable offence.

[(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a court other than the High Court or Court of Session, he may be released on bail, but-

(i) Such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;

(ii) Such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non- bailable and cognizable offence:"

9. The last proviso of Sub-Section 1 of Section 437 CrPC is also

relevant. It reads thus:

"Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment of life, or imprisonment for seven years or more, be released on bail by the Court under this sub-section without giving an opportunity of hearing to the Public Prosecutor".

10. There is no dispute with regard to the legal proposition that ordinarily

a Magistrate does not grant bail in the sessions triable cases which are

punishable with imprisonment for life or death penalty unless the matter is

covered by any of the provisos under Section 437 CrPC. If the offences are

exclusively triable by the Court of Sessions and are not punishable with life

imprisonment or death then the M.M. can also grant bail provided the public

prosecutor has been given the opportunity of being heard.

11. In the given facts and circumstances, there is also no dispute that the

offence allegedly committed was not punishable with death penalty.

Therefore, the only question that would remain to be examined is whether

the offence allegedly committed by the petitioners was punishable with life

imprisonment or with lesser imprisonment.

12. Section 307 IPC makes the offence of attempt to commit murder

punishable with life imprisonment upto to 10 years or fine. The latter part of

this Section provides that if the hurt is caused to any person by such act, the

offender shall be liable either to imprisonment of life or to such punishment

as is hereinbefore mentioned. Making a plain and literal interpretation of

this provision, it would be seen that in the act of attempt to murder falling

within the first part of Section 307 IPC, the punishment prescribed was

imprisonment upto 10 years and fine. However if the hurt was caused in the

act of commission of offence of attempt to murder, then the imprisonment

could be for life or to 10 years and fine.

13. There is no dispute that if the complaint of the petitioners falls within

the first part, then the imprisonment was to be 10 years and fine and

Magistrate was competent to grant bail. However, if there was hurt caused

to any person by such act, the imprisonment was to be for life or 10 years.

14. The learned ASJ has taken note of the definition of "hurt" as provided

in Section 319 IPC which includes bodily pain, disease or infirmity.

Admittedly, there being no bodily pain or disease suffered by the

complainant in the incident, the question that requires consideration is

whether infirmity would also constitute the hurt within the ambit of Section

307 IPC. There is no doubt that bodily pain, disease and infirmity would

constitute hurt and is punishable under Section 321 IPC. The question for

consideration would be as to whether the type of "hurt" as defined in Section

319 IPC would be enough to bring the case within the ambit of later part of

Section 307 IPC. To my mind, this would be importing into Section 307

IPC, an extraneous definition of „hurt‟. The type of hurt which was

described and was to bring the case within the second part of Section 307

IPC and make the offences punishable with life imprisonment was not of the

type of hurt which is defined in Section 319 IPC or the injury which is

elaborated in Section 44 of IPC. If this was so, then in every case of attempt

to murder, the victim would complain to be in an unhealthy state of body

and mind and state of temporarily mental impairment or even hysteria. If it

was the intention of legislature to bring into the ambit all kinds of hurt and

injury, which included bodily pain, disease, infirmity, impaired status of

mind, hysteria, then there was no need to have distinction in the punishment

in the first part and second part of the Section 307 IPC. For seeing as to what

was the type of hurt which was envisaged in second part of Section 307 IPC,

one can see illustration „C‟ appended to the said section. The said

illustration reads thus:

"(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence. A fires the gun at Z. He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the punishment provided by the latter part of the first paragraph of] this section".

15. In the aforesaid illustration, the word "wounds" has been

intentionally used to impress upon and clarify the type of hurt that would

come within the ambit of second part of Section 307 IPC. It is the hurt that

would result in wounds which would be within the ambit of second part of

Section 307 IPC. In other words, it is not every type of hurt that is

envisaged in Sections 319 IPC or 44 IPC, but only the type of hurt which has

resulted in infliction of some physical injury which would bring the case

within the purview of second part of Section 307 IPC and make the offence

punishable with life imprisonment.

16. By importing the definition of hurt and injury as described in

Sections 319 and 44 IPC into the definition of "hurt" covered under Section

307 IPC, the court would be substituting its views with those of the

legislature. The principle of statutory interpretation is well settled. Where

the words of the statute are clear and unambiguous, the provision should be

given its plain and normal meaning, without adding or rejecting any words.

Departure from the literal rule, by making structural changes or substituting

words in a clear statutory provision, under the guise of interpretation will

pose a great risk as the changes may not be what the legislature intended or

desired. Wisdom of legislature cannot be replaced by the views of the

judge. Since Section 307 IPC read in the guidance of its illustration does not

leave any ambiguity, the plain and normal meaning has to be given to the

words used in this section. Further, since there was neither any confusion

nor any absurdity or repugnancy, the interpreting tools could not be used to

add or omit the words in the statute. If the legislature intended to have full

gamut of hurt and injury to be within the ambit of Section 307 IPC, the same

would have been so provided and explained through illustration. That was

presumably not done because the very act of attempt to murder itself has

within its commission, the bodily pain, infirmity, mental disorder,

bereavement etc. All such types of hurts were not to be punishable with life

imprisonment.

17. In view of the above discussion, I am of the considered view that the

offences alleged against the petitioners were of simple attempt to murder

which would fall within the first part of Section 307 IPC and the same being

punishable with imprisonment upto 10 years was within the competence of

M.M. under Section 437(1)(i) CrPC.

18. In view of the above, the order of learned ASJ dated 30.4.2011 is set

aside and the petitions are allowed. Consequently, the order of learned

M.M. dated 21.4.2011 is restored.

19. Petitions stand disposed of.

M.L. MEHTA (JUDGE) DECEMBER 07, 2011 akb