Himachal Pradesh High Court
Deepak Kumar vs State Of Himachal Pradesh on 1 July, 2024
Neutral Citation No. ( 2024:HHC:4261 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.MP(M) No.642 and 643 of 2024
Reserved on: 20.06.2024
.
Date of Decision: 01st July 2024.
1. Cr.MP(M) No. 642 of 2024
Deepak Kumar
....Petitioner
Versus
State of Himachal Pradesh
....Respondent
2. Cr.MP(M) No. 643 of 2024
Reena Devi
....Petitioner
Versus
State of Himachal Pradesh
....Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Judge.
Whether approved for reporting? No.
For the Petitioner : Mr. Virender Thakur, Advocate, in
both the petitions.
For the Respondents : Mr Lokender Kutlehria, Additional
Advocate General for
respondent/State with HC Rajeev
No.15, P.S. Amb in both the
petitions.
Mr. Divya Raj Singh, Advocate, for
complaint victim in both the
petitions.
Whether reporters of the local papers may be allowed to see the judgment? Yes
Rakesh Kainthla,Judge
The petitioners have filed the present petitions for
their pre-arrest bail. It has been asserted that the petitioners
.
have been falsely implicated in case F.I.R. No. 42 of 2024, dated
21.03.2024, for the commission of offences punishable under
Sections 341, 323, 325, 307, 504, 427, 201 read with Section 34 of
IPC, and some other non-bailable offences registered at Police
Station Amb, District Una, H.P. The story of the prosecution is
false and fabricated.
r The petitioners along with thier minor
children were attacked by the opposite party with an intention to
kill them. An altercation took place before the incident and the
informant along with some other person attacked the petitioners
after entering their house forcibly. The petitioners reported the
matter to the police. The informant belongs to an influential
background and the F.I.R. of the petitioners was not registered by
the police. The petitioners met the Superintendent of Police, who
directed the police to register the F.I.R. The petitioners are
apprehending their arrest. The petitioners are ready and willing to
join the investigation and abide by all the terms and conditions,
which the Court may impose upon them. Therefore, it was prayed
that the present petitions be allowed and the petitioners be
released on bail.
2. The petitions are opposed by filing a status report
.
asserting that the informant made a complaint to the police
stating therein that his son Abhinandan Sharma was going to his
home in the vehicle bearing No. PB11AN-8888 on 20.03.2024. A
tempo /three-wheeler met him at Kuthiari Khad. The road was
narrow and two vehicles could not cross it simultaneously; hence,
Abhinandan asked the driver of the three-wheeler to reverse the
vehicle. The driver got infuriated and started abusing the victim.
The driver of the three-wheeler parked his auto in front of the
victim's vehicle. He came near the victim's vehicle and started
beating him. He also snatched the mobile phone of the victim.
The driver went away from the spot after beating the victim. The
victim and his friends went to the house of the driver and called
him. The driver and his wife came out of the vehicle and they
started abusing the victim. They inflicted the injury on the head of
the victim. They also damaged the vehicle. The people reported
the matter to the police. The victim was taken to the hospital. He
was referred to PGI but he was taken to Fortis Hospital. The police
registered the F.I.R. and conducted the investigation. The victim
was under treatment at Fortis Hospital. As per the medical report,
the victim had suffered grievous injury. The final report was
issued that the injury was dangerous to life. The victim was hit
.
with a Hockey on his head. The petitioners are involved in the
commission of a heinous offence. An F.I.R. No.45 of 2024 dated
23.03.2024 for the commission of offences punishable under
Sections 451, 323, 506 read with Section 34 of IPC was registered
at the instance of the petitioners in Police Station Amb against the
informant. The Charge sheet has been filed in the Court of learned
ACJM Amb, District Una, H.P.. The investigation in the present
case is continuing. Hence, the status report.
3. I have heard Mr Virender Thakur, learned counsel for
the petitioners in both the petitions, Mr Lokender Kutlehria,
learned Additional Advocate General for respondent/State and Mr.
Divya Raj Singh, learned Counsel for the complainant-victim.
4. Mr Virender Thakur, learned counsel for the
petitioners submitted that the petitioners are innocent and they
were falsely implicated. The victim attacked the petitioners in
their home with their two friends. The victim is an influential
person and the F.I.R. of the petitioners was not registered by the
police at the victim's instance, therefore, the petitioners had to
meet the Superintendent of Police to get their FIR registered.
Petitioners joined the investigation as per the direction of the
.
Court. Hence, he prayed that the present petitions be allowed and
the order dated 02.04.2024 be made absolute.
5. Mr. Lokender Kutlehria, learned Additional Advocate
General submitted that the petitioners are involved in the
commission of a heinous offence.
to The victim was hit with a
hockey stick on his head and the injury was stated to be dangerous
to life. Keeping in view the gravity of the offence, the petitioners
are not entitled to the concession of bail. Hence, he prayed that
present petitions be dismissed.
6. Mr Divya Raj Singh, learned counsel for the
complainant-victim adopted the argument advanced by the
learned Additional Advocate General and prayed that present
petitions be dismissed.
7. I have given considerable thought to the submissions
at Bar and have gone through the records carefully.
8. It was laid down by the Hon'ble Supreme Court in P.
Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that
the power of pre-arrest is extraordinary and should be exercised
sparingly. It was observed:-
.
"67. Ordinarily, arrest is a part of the procedure of the
investigation to secure not only the presence of the accused
but several other purposes. Power under Section 438 Cr.P.C. is
an extraordinary power and the same has to be exercised
sparingly. The privilege of pre-arrest bail should be granted
only in exceptional cases. The judicial discretion conferred
upon the court has to be properly exercised after application
of mind as to the nature and gravity of the accusation; the
possibility of the applicant fleeing justice and other factors to
decide whether it is a fit case for grant of anticipatory bail.
Grant of anticipatory bail to some extent interferes in the
sphere of investigation of an offence and hence, the court
must be circumspect while exercising such power for the
grant of anticipatory bail. Anticipatory bail is not to be granted
as a matter of rule and it has to be granted only when the court
is convinced that exceptional circumstances exist to resort to
that extraordinary remedy."
9. This position was reiterated in Srikant Upadhyay v.
State of Bihar, 2024 SCC OnLine SC 282 wherein it was held:
"25. We have already held that the power to grant
anticipatory bail is extraordinary. Though in many cases it
was held that bail is said to be a rule, it cannot, by any stretch
of the imagination, be said that anticipatory bail is the rule. It
cannot be the rule and the question of its grant should be left
to the cautious and judicious discretion of the Court
depending on the facts and circumstances of each case. While
called upon to exercise the said power, the Court concerned
has to be very cautious as the grant of interim protection or
protection to the accused in serious cases may lead to a
miscarriage of justice and may hamper the investigation to a
great extent as it may sometimes lead to tampering or
distraction of the evidence. We shall not be understood to have
held that the Court shall not pass interim protection pending
consideration of such application as the Section is destined to
safeguard the freedom of an individual against unwarranted
arrest and we say that such orders shall be passed in
eminently fit cases."
10. It was held in Pratibha Manchanda v. State of Haryana,
.
(2023) 8 SCC 181: 2023 SCC OnLine SC 785 that the Courts should
balance individual rights, public interest and fair investigation
while considering an application for pre-arrest bail. It was
observed:
"21. The relief of anticipatory bail is aimed at safeguarding
individual rights. While it serves as a crucial tool to prevent
the misuse of the power of arrest and protects innocent
individuals from harassment, it also presents challenges in
maintaining a delicate balance between individual rights and
the interests of justice. The tightrope we must walk lies in
striking a balance between safeguarding individual rights and
protecting public interest. While the right to liberty and
presumption of innocence are vital, the court must also
consider the gravity of the offence, the impact on society, and
the need for a fair and free investigation. The court's
discretion in weighing these interests in the facts and
circumstances of each case becomes crucial to ensure a just
outcome."
11. The police stated in the status report that the victim
had sustained an injury that was dangerous to life. Hence, the
offence punishable under Section 307 of IPC was made out. This is
not acceptable.
12. Section 320(8) of IPC thus defines any hurt which
endangers life or which causes the sufferer to be in severe bodily
pain, or unable to follow his ordinary pursuits as grievous hurt.It
was laid down by the Punjab and Haryana High Court in Atma
Singh vs. State of Punjab 1980 Crim. L.J. 1220 that IPC recognizes
.
only four kinds of injuries -- simple, grievous, injuries inflicted
with intent to commit murder and injuries sufficient to cause
death. No provision in the IPC recognizes injury dangerous to life
or which endangers life. The injury endangering the life falls
within Section 320(8) of IPC and such an injury is grievous. It was
observed:-
"10. When the doctor is required to carry out a medico-
legal examination of the injury suffered in a criminal
assault, he is required to examine the injury from two
standpoints : (1) for the purpose of opining the kind of
weapon used to inflict the injury in question and, (2ndly) to
form an opinion regarding the degree of seriousness of the
injury in order to enable to see as to what offence has the
accused committed by inflicting the injury in question. The
Indian Penal Code recognises from the standpoint of
seriousness only four types of injuries, (1) simple injuries;
(2) grievous (3) injuries of the kind inflicted with intent to
commit murder described in clauses 'Firstly' and '2ndly' of
Section 300 of the Indian Penal Code, (4) injury sufficient to
cause death in the ordinary course of nature envisaged by
clause Thirdly' of Section 300 of the Indian Penal Code.
There is no provision in the Indian Penal Code, which
envisages or refers to an injury described as 'dangerous to
life'. The medicolegal examination of an injured person is
intended to enable the Investigating Agency and the Court
to find out the nature of the offence and, therefore, the
doctor examining an injured person has to opine that the
injury in question is one or the other of the type recognised
in the Indian Penal Code for the purposes of a given offence.
When a doctor describes an injury as 'dangerous to life' one
has to see what had the doctor intended to convey thereby.
.
Is one to hold that since the injury has not been described
by the doctor as one which 'endangered life', so the
concerned injury cannot be held to be grievous on the
specious ground that an injury described as 'dangerous to
life' is not as serious an injury which 'endangers life'.
11. It appears that the doctors who had been conducting the
medico-legal examinations have been using the term
'dangerous to life' as synonymous with an injury, which
'endangers life'. Even the Courts at times have considered
an injury described as dangerous to life as an injury
envisaged in clause 'Eighthly of Sec. 320 of the Indian Penal
Code. In this regard reference can be made to Mahamed Rafi
v. Emperor, AIR 1930 Lah 305: (31 Cri LJ 77). In that case, the
injury was on the right side of the neck about 2½" x -" in
dimension inflicted with a sharp-edged weapon. The doctor
had, in fact in that case deposed that there was every
possibility of the deceased surviving but for the wound
becoming septic apparently as a result of it being pressed
with hands and bandaged with dirty cloth in the initial
stages before the deceased was taken to the hospital. The
Court held that though a finding that the appellant knew
that his act was likely to cause death, was not justified but
at the same time, a wound on the neck must at least be
considered to be 'dangerous to life' within the meaning of
Clause (8), Section 320, Indian Penal Code, and therefore,
grievous'.
12. Palekar, J., too in Jai Narain Mishra v. State of Bihar, 1972
Cr App R 19 : (1972 Cri LJ 469) (SC), held, a penetrating
wound 1½ x ½ x chest wall deep on the right side of the
chest caused with a bhala and described as 'dangerous to
life', as grievous injury and in the latter part of paragraph 11
called this injury as one endangering life.
13. The expression 'dangerous' is an adjective and the
expression 'endanger' is a verb. An injury, which can put
life in immediate danger of death would be an injury which
can be termed as 'dangerous to life' and, therefore, when a
doctor describes an injury as 'dangerous to life', he means
an injury, which endangers life in terms of clause (8) of
.
Section 320, Indian Penal Code, for, it describes the injury
'dangerous to life' only for the purpose of the said clause.
He instead of using the expression that this was an injury
which 'endangered life' described it as that the injury was
'dangerous to life', meaning both times the same thing.
14. K. S. Tiwana, J. in Crl. Appeal No. 1489 of 1974, (Sukhdev
Singh v. The State of Punjab), decided on January 18, 1979,
was concerned with the statement of a doctor who had
merely externally examined the injury and had opined it to
be dangerous to life. The doctor who had performed the
operation had not preferred any opinion. The injury was a
penetrating wound with clean-cut margins of the size of
1¼" x ½" on the left side of the chest, 5" below the nipple.
The depth of the wound was not measured by the doctor
who had given the opinion. In this case, the learned Judge
did not accept the opinion of the doctor that the injury was
dangerous to life on the ground that he was not qualified to
say so merely by looking at the injury and the one who had
performed the operation and had seen the damage had not
given any such opinion. The learned Judge did not go into
the question that an injury described as dangerous to life in
no case could be considered a grievous injury.
15. S. S. Dewan, J., in Crl. Appeal No. 1007 of 1975 (Harbans
Singh v. The State of Punjab) decided on February 8, 1979,
observed as did S. C. Mital, J., in Jagrup Singh's case (1973
Chand LR (Cri) 253) (Punj) that the term 'dangerous to life'
is milder than the expression 'endangers life'. He merely
followed his earlier decision holding that an injury
described as dangerous to life cannot be considered
grievous.
16. A. S. Bains, J., in Crl. Appeal No. 355 of 1976, (Surjit Singh
v. The State of Punjab), merely followed the decision in
Jagrup Singh's case (1973 Chand LR (Cri) 253) (Punj) and held
that injury described as 'dangerous to life' would not satisfy
the requirement of clause (8) of Section 320, Indian Penal
Code and would not be a grievous injury. In all these
decisions, with respect, there is no discussion in depth.
17. We are of the view that the Court is not absolved of the
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responsibility while deciding a criminal case to form its
conclusion regarding the nature of the injury, the Expert's
opinion notwithstanding. The Court has to see the nature
and dimension of the injury, its location and the damage
that it has caused. Even when an injury is described as to be
one which endangers the life the court has to apply its mind
and form its own opinion in regard to the nature of the
injury, having regard to the factors that should weigh with
the Court, already mentioned. We are also firmly of the view
that wherever a doctor describes an injury as 'dangerous to life'
and the nature of the injuries is such which could merit such a
conclusion then such an injury has to be treated as 'grievous
hurt' of the description mentioned in the first portion of clause
(8) of Section 320 of the Indian Penal Code." (Emphasis
supplied)
13. Therefore, prima facie the offence punishable under
Section 307 of IPC is not made out based on the medical opinion.
14. It was submitted that the injury was caused on the
head and the petitioners would have been guilty of the
commission of an offence punishable under Section 302 of IPC,
had the death been caused. This is not acceptable. The F.I.R. does
not mention the weapon of the offence and mentions that
something was used to hit the victim on his head. Subsequently,
the police found that a hockey was used for the commission of
offence but the status report is silent whether the injury could
have been caused by means of the hockey recovered by the police
or not. The status report further shows that only one injury was
caused and it is doubtful at this stage that injury caused by a
.
hockey in the darkness directed at the informant and hitting the
head would have constituted murder and not the culpable
homicide not amounting to murder had the victim died.
15 Status report does not show that the custodial
interrogation of the petitioners is required. The status report
merely states that the informant and his family members are
angry over the incident.
16. The pre-arrest bail was granted by the Court on
02.04.2024. It was submitted that the pre-arrest bail was
regarding the offence punishable under Sections 341, 323, 427 and
504 read with Section 34 of IPC and the same does not extend to
Section 307 of IPC. It is apparent that initially the F.I.R. was lodged
for the commission of offences punishable under Sections 341,
323, 504, 427 and Section 34 of IPC. Sections 325 and 307 of IPC
were added after the receipt of the opinion from the Medical
Officer. It has already been found above that the prima facie
applicability of Section 307 of IPC to the present case is highly
doubtful. Hence, it cannot be said that a grave offence was found
to have been committed. The status report shows the exact
offences, which have been invoked by the prosecution against the
.
petitioners; hence, the Court is in a position to decide whether the
pre-arrest bail is to be granted or not on the basis of the offences
mentioned by the police.
17. The status report does not show that the petitioner had
misused their liberty or had misused the conditions imposed upon
them by the Court. Hence, the petitioners cannot be detained in
custody in the present case.
18. In view of above, the present petition are allowed and
the order dated 02.04.2024 is made absolute regarding the F.I.R.
No. 0042 of 2024 under Sections 341, 323, 427, 504 read with
Section 34 of IPC.
19. The observations made hereinabove are regarding the
disposal of this petitions and will have no bearing, whatsoever, on
the merits of the case.
(Rakesh Kainthla)
Judge
01st July,2024
(Ravinder)
