Vinod Kumar Sharma vs State Nct Of Delhi
2013 Latest Caselaw 3637 Del

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*       IN THE HIGH COURT OF DELHI AT NEW DELHI

+                      BAIL APPL. No. 1500/2012


VINOD KUMAR SHARMA                                     ..... Appellants
                Through:                 Mr. Shailender Babbar and
                                         Varun Gaur, Advocates

                            versus


STATE NCT OF DELHI                                     ..... Respondent
                            Through:     Ms. Fizani Hussain, APP with
                                         Inspector Ram Avtar, SI Ajmer
                                         Singh
                                         Mr. Rupansh Purohit,
                                         Advocate for complainant

CORAM:
HON'BLE MS. JUSTICE SUNITA GUPTA

                            ORDER

% 21.08.2013

1. This is an application filed under Section 439 Cr. P.C. r/w

Section 482 Cr. P.C. for grant of regular bail by accused Vinod

Kumar Sharma in case arising out of FIR 30/2010 under Section

302/307/34/147/148/323/325 IPC r/w Section 25/27 of Arms Act,

registered at PS Dabri, South West District, New Delhi.

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2. The aforesaid FIR was registered on the statement of Mr.

Vivek Gaur wherein he narrated that he along with his family has

been residing at C-25, New Krishna Park, Vikas Puri, New Delhi. He

was running a factory of manufacturing scooter parts at Khasra No.

38, Village Dabri, New Delhi. On 24th January, 2010, at about

9.30/10.00 a.m. Haryana Police came to investigate the theft case

lodged by them and apprehended three persons from the factory of his

paternal uncle, namely, Vinod Sharma located at Khasra No. 38,

Village Dabri, New Delhi. At about 11.00 a.m. Vinod Sharma, who

is his paternal uncle along with son Aman Gaur and driver Amrit Lal

came to the spot. Employees of Vinod Sharma, namely, Neeraj,

Rahul and Naresh Karotia and wife of Ram Mehar Singh also came to

the spot. Thereafter Vinod Sharma, his son Aman Gaur and his

workers started creating riot situation. Wife of Ram Mehar Singh and

worker Laxman brought big lathies from inside the factory. Sh. R.K.

Naseem, a noted criminal lawyer, who was his uncle, was present and

tried to pacify them. Thereafter, Sh. R.K. Naseem stood at one side

with his back towards Vinod Sharma. Meanwhile, Laxman handed

over one rectangular type stick to Vinod Sharma. Wife of Ram

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Mehar Singh also threw a piece of brick. Vinod Sharma attacked

with that stick on the head of Sh. R.K. Naseem from back side. As a

result of which he fell down and became unconscious. Aman Gaur

took out his revolver and fired three rounds on Sh. R.K. Naseem and

father of the complainant Sh. Virender Sharma in order to kill them

but nobody was injured due to the bullet injury. Aman Gaur while

firing uttered "Jaan Se Maar Dunga". On the other side, Neeraj,

Ramesh Raghav, Kailash Khati, Naresh Karotia, Rahul and Amrit Lal

attacked his brother Sunny and Monty with the help of sticks and

fists. There were long standing civil and criminal litigations going on

with Vinod Sharma. He got his uncle Sh. R.K. Naseem admitted in

the hospital in serious condition. Sh. R.K. Naseem succumbed to the

injuries on 8th February, 2010. The petitioner was arrested on 28th

January, 2010.

3. Bail of the petitioner is sought on the grounds that :-

i) there is delay in initiating trial thereby depriving the

accused of his right to speedy trial. The delay is totally

attributable to prosecution and complainant party deliberately.

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In fact, no trial has begun inasmuch as out of eight accused

already surrendered, charges qua four has only been framed

whereas against other four accused charges has not been

framed as yet. Charge against applicant was framed on 15th

February, 2011 and till today not even a single witness has

been examined by the prosecution. Initially prosecution filed

revision petition and vide order dated 19th April, 2011 this

Court stayed the operation of the order against two of the

accused persons, which was got vacated only vide order dated

4th April, 2013. In fact, Rajiv Gaur and other witnesses of the

complainant kept on seeking one adjournment or the other and

did not allow the trial to begin. Furthermore, one of the

witness misbehaved with the trial judge, as such, she recused

herself and when the matter was heard by other judge then a

transfer application was moved by wife of the deceased and the

matter was transferred by learned District Judge. However, the

order was set aside vide order dated 2nd January, 2012. This

delay is again attributable to the complainant and the witnesses.

Learned prosecutor also sought number of adjournments. Not a

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single adjournment was sought by the applicant. As such, the

delay in trial is solely attributable to the prosecution and the

complainant.

ii) the applicant suffered serious injuries ranging from head

injury to fracture arms and ribs by the attack at the hands of the

complainant party but the local police and even Crime Branch

who filed charge sheet did not dare to register any case or to

proceed against the culprits who committed various serious

offences in which the applicant was a victim. The applicant

thereupon filed a complaint case wherein learned Metropolitan

Magistrate vide order dated 3rd August, 2011 directed the

local police to register FIR. Thereafter FIR was registered,

despite that there is no headway to the investigation. The

Investigating Officer who filed the charge sheet against the

applicant has relied upon CCTV Footage wherein it can be seen

that applicant was hit by complainant but still he chose not to

proceed and register a cross case against the complainant and

even after getting directions for filing status report in response

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to the application of applicant under Section 156(3) Cr. P.C.

chose to report that no offence was committed.

iii) Not only that, there is shabby investigation inasmuch as

the Investigating Officer intentionally and deliberately

destroyed the evidence given by the applicant as the CCTV

footage supplied by the applicant was not produced which

would have revealed that it was the complainant party who was

aggressor. The Investigating Officer deliberately did not

mention any injuries suffered by the applicant despite the fact

that the applicant was arrested on 28th January, 2010 from Sant

Parmanand Hospital. He had undergone his surgery regarding

the broken bones ranging from skull to arms.

iv) CCTV footage relied upon by the prosecution would

reveal that initially complainant started hitting the applicant

and had given head butt to the applicant thereafter beat his son

whose right shoulder got broken.

v) The applicant is alleged to have given a danda blow to the

deceased which fact is denied. Even assuming the same to be

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correct, single blow theory would be applicable and, as such,

offence under Section 302 IPC is not made out. At the most

this is a case under Section 304 (Part II) IPC. Bail was granted

to son of applicant after considering CCTV footage relied upon

by the applicant. If the CCTV footage is seen, it would be

amply clear that the complainant party and the deceased were

author of the alleged incident.

vi) The applicant also claims bail on account of his ill

health. He is a known patient of diabetes, chronic heart disease

and hypertension. Thrice he was operated for his heart disease.

He is suffering from chronic kidney disease. He has to

consume 30-35 tablets a day. He is above 60 years. Now

prostate cancer has developed which needs specialised medical

attention from specialized institution in India and abroad.

vii) As regards the antecedents of the applicant, it was

submitted that he was an MLA during BJP regime and because

of the sensitive nature towards political issues, rivals involved

him in ten cases out of which in eight cases either he was

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acquitted or discharged and two cases are pending. Further, the

applicant had a family dispute with his brother, deceased and

their children. The deceased used his influence and got six

cases registered against him which are still pending. The

applicant is an Ex. MLA and is a victim of the aforesaid

incident at the hands of the complainant party. Investigation is

already complete. He is no more required for any purpose and

is in judicial custody for the last approximate 40 months. He

has deep roots in the society and is not likely to flee from

justice. He undertakes to abide by any condition that may be

imposed upon him. The co-accused Aman Gaur has been

granted bail by this Court vide order dated 23 rd December,

2011. As such, he be released on bail.

4. Reliance was placed on number of judgments:-

i) Dipak Shubhashchandra Mehta Vs. CBI, JT 2012 (2) SC 439

ii) Vakil Prasad Singh vs. State of Bihar, 2009 (2) SCALE 22

iii) Pankaj Kumar Vs. State of Maharashtra, 2008(90) SCALE

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iv) Babba Vs. State of Maharashtra, (2005) 11 SCC 569

v) Bal Krishna Pandey Vidur Vs. State of Uttar Pradesh, JT 2001 (10) SC 97

vi) Akhtari Bi Vs. State of Madhya Pradesh, JT 2001 (4) SC 40

vii) Bashishth Singh vs. State of Bihar, (2002) 10 SCC 384

viii) Giani Pratap Singh vs. State of Rajasthan & Anr., 1995 (5) SCALE 29

5. The application is vehemently opposed by the learned Public

Prosecutor for the State on the ground that the petitioner cannot claim

parity with co-accused Aman Gaur who was granted bail by this

Court. The role assigned to the present petitioner is entirely different.

He was heading unlawful assembly and gave a fatal blow on the head

of Pandit R.K. Naseem from his back side with intention to kill him.

Due to fatal blow, he became unconscious and was removed to

hospital and ultimately he succumbed to injuries on 8th February,

2012. These facts are corroborated with the FIR, statement of

witnesses and CCTV footages. The post mortem report of the

deceased shows the cause of death as "Carnio Cerebral Injury

subsequent to forcible blunt impact imparted directly over the head

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and this head injury was sufficient to cause death in the ordinary

course of nature. As per forensic expert report, the wooden stick

could cause the head injury as mentioned in the post mortem report.

Further as per the forensic expert opinion of DNA finger printing

unit, DNA Profile of the source of wooden piece is similar with the

DNA Profile of the source of Ex.1 (piece of gauze cloth described as

blood sample in gauze). Furthermore, the petitioner is not a law

abiding citizen which is evident from the fact that he is involved in as

many as 13 cases. Charge in this case has already been framed

against the petitioner. He is getting treatment for his ailments in

different reputed hospitals of Delhi Government. Two other

associates of the petitioner are still absconding. A detailed list of

dates before the Trial Court has been filed for showing that out of 101

dates, on as many as 56 dates, case was adjourned due to

adjournments sought by the petitioner and co-accused. As such, the

delay is not attributable to the prosecution. Moreover, after the

framing of the charge, now the case is fixed for prosecution evidence

from 4th September, 2013 to 9th September, 2013. As such, there is

no merit in the application, same deserves to be dismissed.

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6. The application is also opposed by the complainant on

following grounds:

(i) As regards medical ground set up by the applicant, the

applicant is getting the best treatment from best hospitals of India. It

is not the submission of the applicant that due to incarceration he is

not getting proper treatment. Reference was made to the reply given

by the Senior Medical Officer of Tihar Jail to the RTI application

where it was reported that all injuries and fractures have been healed,

he is being provided with medical treatment as per his illness. The

petitioner is getting requisite and appropriate treatment from best

hospitals such as AIIMS, GB Pant and DDU. As regards the

submission that applicant is suffering from Prostate Cancer, it was

submitted that in the entire medical record there is nothing to

establish that he is suffering from Prostate Cancer. Moreover,

medical condition cannot by itself be a ground for bail. Reliance was

placed on Pawan @ Tamatar Vs. Ram Prakash Pandey, AIR 2002

SC 2224.

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(ii) The medical report, death report, post mortem report makes it

crystal clear that the fatal blow was given on the head of the deceased

from his back side by the petitioner with the intention to kill the

deceased.

(iii) The antecedents of applicant are not clear, inasmuch as, he is

involved in as many as 17 criminal cases besides the present one,

details of which was given. It was further submitted that in three

cases, the petitioner was acquitted as the prosecution witnesses turned

hostile. It depicts a lot about his conduct and influence and in the

circumstances, if he is given bail, there is every likelihood that the

prosecution witnesses might be influenced and might turn hostile.

(iv) The allegations against the petitioner are quite serious. He is

charged for offence under Section 302 IPC besides other offences

which involves the death punishment or at least life imprisonment.

(v) He cannot claim parity with co-accused Aman Gaur who was

released on bail by this Court, inasmuch as, it was specifically

observed in the order that Aman Gaur did not give the fatal injury to

the deceased. The accused who is facing trial for serious offences

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and is a criminal having number of cases pending against him, is also

an Ex. MLA, can influence not only the public witnesses but the

Government officials as well.

(vi) As regards the plea that there is delay in trial of the case, it was

submitted that the Trial Court has already given six dates for

recording the evidence of eye-witnesses. Moreover, the delay cannot

be attributed to the prosecution or the complainant. One after the

other applications were moved by the accused before the Trial Court

as well as this Court which is causing delay. Moreover, in cases

involving heinous offences, delay cannot be a ground for bail.

Reliance was placed on Sanjay Sharma vs. State of Jammu and

Kashmir 2004 Cr.L.J. 1473 and Kumari Suman Pandey vs. State of

U.P. 2007 (12) SCC 364.

(vii) As regards the submission that the complainants were the

aggressor, it was submitted without admitting this plea of the

applicant, even if it is presumed that the complainants were the

aggressor what was the fault of the deceased. He was simply

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pacifying both the sides when he was brutally given a hit from his

back by the petitioner.

(viii) As regards the fact that he is in judicial custody for the last

more than three years, that itself is not sufficient for granting bail in

such a heinous offence. Reliance was placed on State through CBI

vs. Amaramani Tripathi 2005 AIR (SC) 3490. As such, application

is liable to be dismissed.

7. I have given my thoughtful consideration to the respective

submissions of learned counsel for the parties and have perused the

record.

8. Without referring to any specific judgment, which has been

pronounced by Hon'ble Apex Court from time to time, including the

latest in case of Dipak Subhash Chander Mehta vs. CBI & Anr. JT

2012 (2) SC 439, the Court granting bail should exercise its discretion

in a judicious manner and not as a matter of course. At the stage of

granting bail, a detailed examination of the evidence and elaborate

documentation of the merits of the case need not be undertaken. The

Court granting bail has to consider, among other circumstances, the

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factors such as (a) the nature of accusation and severity of

punishment in case of conviction and the nature of supporting

evidence; (b) reasonable apprehension of tempering with the witness

or apprehension of threat to the complainant; and (c) Prima facie

satisfaction of the Court in support of the charge. In addition to the

same, the Court while considering a petition for grant of bail in a non-

bailable offence apart from the seriousness of the offence, likeliho od

of accused fleeing from justice and tempering with the prosecution

witnesses have to be noted.

9. Needless to say, petitioner is facing trial for offence under

Section 302 Indian Penal Code, besides other charges which, if

proved, may entail punishment up to death sentence. That being so,

the very first parameter which is important for grant of bail, namely,

the severity of accusation and quantum of sentence which it carries,

does not entitle the petitioner to the grant of the discretion of bail.

10. One of the grounds seeking bail by the petitioner is delay in the

trial of the case. The details of the cases filed by the parties reveals

that against the order of charge passed by the learned Trial Court, the

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State went into revision against two co-accused and the trial was

stayed by this Court qua those two accused persons only and not

against the petitioner. Thereafter on the request of parties, the stay

has been vacated and the Trial Court has been directed to expedite the

trial. The petitioner also filed revision petition against the order

framing charge which is pending. Co-accused Aman Gaur, Neeraj

and Rahul also filed a revision petition which was also adjourned

from time to time. Complainant also filed a criminal revision against

the order of charge. The co-accused filed bail application before this

Court. The petitioner filed a petition against the order of transferring

of the case. The complainant also filed a petition for cancellation of

bail of Aman Gaur. Thus, delay in holding trial cannot be attributable

alone to the prosecution but accused has equally contributed to it.

That being so, it cannot be made a ground to release the petitioner on

bail. In Sanjay Sharma (supra) and Kumar Suman Pandey (supra)

delay in trial not solely attributable to prosecution was held not to be

a ground to release the accused on bail.

11. As regards the submission that there was a shabby investigation

and although the applicant suffered serious injuries but police did not

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register any cross-case against the complainant party, it is a matter of

record that in pursuance to a complaint filed by the petitioner,

Metropolitan Magistrate has ordered for registration of FIR and FIR

has been registered and it was stated that it is pending investigation.

12. The question as to whether the claimant was not aggressor or

that single blow would not attract the provisions of Section 302 IPC

are not required to be gone into at this stage as that will tantamount to

pre-judging the entire case at this juncture which is not warranted. At

the stage of considering bail application, a detailed examination of

evidence and elaborate documentation of the merits of the case is not

required to be undertaken.

13. Regarding the claim for bail on account of his ill health, it is a

matter of record that the applicant is getting treatment in AIIMS, GB

Pant and DDU hospital. There is no grievance of the applicant about

the treatment given to him by these hospitals. The only plea taken by

him is that prostate cancer has developed and the same requires

specialized medical attention. Firstly, there is no document to this

effect that the petitioner is suffering from prostate cancer and in case

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of such a disease, the Superintendent, Jail can be given directions to

provide him best of the treatment. It was submitted by learned Public

Prosecutor for the State that if the treatment is not available in

government hospital then the same can also be provided in private

hospital at the expense of the petitioner but that cannot be made a

ground for releasing him on bail.

14. As per the own showing of the petitioner, he is involved in

various cases. He remained Ex-MLA as such there is a reasonable

apprehension or likelihood of the petitioner influencing the witnesses.

15. Incarceration of the petitioner in Jail for over 40 months by

itself cannot constitute a ground for bail.

16. The authorities relied upon by learned counsel for the petitioner

are on the facts of its individual case and it is settled law that each

case has to be decided on its peculiar facts and circumstances.

17. Keeping in view the facts and circumstances of the case,

seriousness and gravity of the offence, antecedents of accused,

coupled with the fact that as per the prosecution case, he was the

person responsible for inflicting injury on the head of Pandit R.K.

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Naseem which proved fatal and he succumbed to injuries, petitioner

is not entitled to be released on bail. The learned counsel for the

petitioner rightly did not seek parity from the order passed by this

Court releasing co-accused Aman Gaur on bail, inasmuch as, it was

observed that he was not the main person who inflicted injury on the

person of Pandit R.K. Naseem, which is not so in the case of

petitioner. As per prosecution case he is the main perpetrator of the

crime.

18. For the reasons mentioned above, I dismiss the bail application

of the petitioner.

19. It is, however, clarified that nothing stated herein shall

tantamount to an expression of opinion on merits of the case.

SUNITA GUPTA (JUDGE)

AUGUST 21, 2013 rs

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