Balkishan @Tinku vs The State
2019 Latest Caselaw 6696 Del

$~14
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Decision: 20th December, 2019
+                     BAIL APPN.2865/2019
       BALKISHAN @TINKU                                ..... Petitioner
                   Through                 Mr. Hansraj Singh and
                                           Mr.Sandeep Mandar, Advs.
                          versus

       THE STATE                                       ..... Respondent
                          Through          Mr. Ashok Kumar Garg, APP
                                           with SI Vikas

       CORAM:
       HON'BLE MR. JUSTICE CHANDER SHEKHAR

CHANDER SHEKHAR, J. (ORAL)

1. The petitioner has filed the present application under Section 438 of the Cr.P.C. for grant of anticipatory bail in FIR No.314/2019 under Sections 186/353/332/34 of the Indian Penal Code, 1860, registered at P.S. Sarai Rohilla, Delhi.

2. Status report has already been filed.

3. The brief facts as emanating from the status report filed by the respondent are that on 10.10.2019, the present case was registered on the statement of the complainant, namely, Mr.Rahul Kumar. In his statement, the complainant had stated that he is currently posted as Milch Tax Inspector and his work is to catch stray cattle and to restrict any illegal dairy farm. On 10.10.2019, when he along with his staff was catching stray cattle near Shastri Nagar Metro Station, one person,

namely, Sunder Lal along with his brother Tinku came on a motorcycle and said that the complainant and his staff had caught their cattle and they attacked the complainant and his staff with a stick and injured him. Thereafter, they ran away from the spot leaving their bike behind. On this, the present FIR was registered.

4. It would be quite appropriate to reproduce the relevant portion of the order dated 2.11.2019 passed by the Sessions Court, whereby the anticipatory bail applications of the petitioner as well as the co- accused Sunder Lal was dismissed, which reads as under:

"It is contended by learned defence counsel for the applicants that, applicants are innocent and have been falsely implicated in this case. It is further contended that, applicants have nothing to do with the offence mentioned in the FIR as no such incident has taken place as mentioned in the FIR. It is further contended that applicants are only bread earner of their family and are not previous convicts. It is further contended that applicants are fearing apprehension of their arrest, at any moment. It is further contended that applicants are ready to join the investigation as and when called by the IO.

On the other hand, learned APP for State has contended that, applicants are required for custodial interrogation, as the matter is at the initial stage of investigation. It is further contended that case property i.e. weapon used in execution of crime, is yet to be recovered from the accused persons at their instance.

Considering the above facts and circumstances and the fact that matter is at the initial stage of investigation and weapon is also yet to be recovered, hence, in my view, no ground is made out to grant the anticipatory bail

to both the applicants, accordingly, both the applications are dismissed."

5. Learned counsel for the petitioner submitted that the Trial Court dismissed the anticipatory bail application of the petitioner vide order dated 2.11.2019 mainly on the ground that the matter was at the initial stage of investigation and the weapon used in the commission of offence was yet to be recovered.

6. Learned counsel for the petitioner further submitted that the petitioner has been falsely implicated in this case and the petitioner was beaten up badly by the veterinary staff of the MCD and to cover up their illegal act, they have lodged a false FIR against the petitioner after a delay of 8 hours.

7. On the other hand, learned APP submitted that the petitioner has not joined the investigation rather he beaten up the government officials as is evident from the FIR. In case the anticipatory bail is granted to the petitioner, it would leave a bad impression on the society at large. Even otherwise, the custodial interrogation of the petitioner is required to recover the weapon used in the commission of offence.

8. Learned counsel for the petitioner disputed the same and submitted that the petitioner is ready to join the investigation and nothing is required to be recovered from the petitioner.

9. Learned counsel for the petitioner, on the query of the Court, admitted that the petitioner did not make any complaint anywhere against the veterinary staff of the MCD. There is also nothing on the

record to show that the petitioner was beaten up by the veterinary staff of the MCD.

10. Anticipatory bail may be granted when there is material on record to show that prosecution was inherently doubtful or where there is material on record to show that there is a possibility of false implication. However, when the element of criminality is involved and/or the custodial interrogation is required and/or the other aspects and facts are required to be unfolded in investigation, the applicant is not entitled for anticipatory bail.

11. It is a well-settled law that while considering the question of grant of anticipatory bail, the Court prima facie has also to look into the nature and gravity of the alleged offence and the role of the accused. The Court is also bound down and must look into, while exercising its power to grant bail, the antecedents of the applicant and also the possibility of the applicant fleeing from justice, apart from other factors and parameters in view of the facts of each and every case.

12. The Supreme Court in the matter of Dr. Subhash Kashinath Mahajan v. State of Maharashtra & Anr., in Criminal Appeal No.416/2018, decided on 20.3.2018, held as under:

"112. The following factors and parameters can be taken into consideration while dealing with the anticipatory bail:

(i) The nature and gravity of the accusation and the exact role of the accused must be properly comprehended before arrest is made;

(ii) The antecedents of the applicant including the fact as to whether the accused has previously

undergone imprisonment on conviction by a court in respect of any cognizable offence;

(iii) The possibility of the applicant to flee from justice;

(iv) The possibility of the accused's likelihood to repeat similar or other offences;

(v) Where the accusations have been made only with the object of injuring or humiliating the applicant by arresting him or her;

(vi) Impact of grant of anticipatory bail particularly in cases of large magnitude affecting a very large number of people;

(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which the accused is implicated with the help of Sections 34 and 149 of the Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern;

(viii) While considering the prayer for grant of anticipatory bail, a balance has to be struck between two factors, namely, no prejudice should be caused to the free, fair and full investigation and there should be prevention of harassment, humiliation and unjustified detention of the accused;

(ix) The court to consider reasonable apprehension of tampering of the witness or apprehension of threat to the complainant;

(x) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."

13. Taking into consideration the nature and the gravity of the offence, the alleged role of the petitioner in the commission of the offence, the possibility to repeat similar or other offences and impact on the public in case the anticipatory bail is granted to the petitioner as well as the fact that the investigation is in its initial stage and the stick used in the commission of offence is yet to be recovered from the petitioner at his instance, thus, I am of the view that the custodial interrogation of the petitioner is required in the matter. Even otherwise, there is nothing on the record to satisfy this Court, at this stage, that there are grounds or more to say reasonable grounds for granting anticipatory bail to the petitioner, hence, this Court does not find any merit in the anticipatory bail application of the petitioner. Accordingly, the anticipatory bail application of the petitioner is dismissed.

14. It is clarified that whatever is discussed or observed hereinabove is only a prima facie view of this Court and shall not tantamount to any expression or opinion on the merits of the case.

CHANDER SHEKHAR, J

DECEMBER 20, 2019/rk