HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved
Criminal Appeal No. 6555 of 2006
Anees........................................Appellant
(In Jail)
Vs.
State of U.P. ...............................Respondent.
********************
Hon'ble B.A. Zaidi,J.
Hon'ble Vijay Kumar Verma, J.
(Per Vijay Kumar Verma,J)
At the time of hearing arguments on the prayer for bail of the appellant Anees, there was difference of opinion. Hence I am passing my separate order.
2. The appellant-accused Anees and co-accused Kaluwa were tried in S.T. No. 61 of 1998 (State vs. Anees & another) by Additional Sessions Judge, Court NO. 7, Pilibhit, who by the judgement and order dated 19.09.2006 convicted and sentence them to undergo imprisonment for life and to pay a fine of Rs. 8,000/- each, under section 302 read with section 34 IPC, on the charge of committing the murder of Washeem @ Kuddu on 07.04.1997 at about 8.30 p.m. The appellant has challenged his conviction and sentence by means of this appeal preferred under section 374 (2) of the Code of Criminal Procedure (in short 'the Cr.P.C.') and has applied for bail during pendency of the appeal.
3. Shorn of unnecessary details, the case of the prosecution as appearing form the First Information Report lodged by Sanabbar Khan, father of the deceased, on 07.04.1997 at 9.50 p.m. at P.S. Kotwali, Pilibhit, in brief, are that some altercation had taken place between his son Waseem @ Kuddu and Anees on matter of panja fighting on 07.04.1997 at about 12.00 Noon and in that dispute, his son had slapt Anees. Although the matter was settled at that time, but due to the enmity of that incident, the accused Anees and Kaluwa came to the house of the complainant at about 8.30 p.m. and they carried his son Washeem in Tangewali gali, where on catching hold of the hands of Waseem by Kaluwa, the accused Anees pierced a gupti in his chest, due to which he sustained injuries and died instantaneously.
4. We have heard Sri R.A. Siddiqui, learned counsel for the appellant and Sri V.K. Mishra learned Additional Government Advocate for the State and perused the record.
5. Although certain arguments touching the merit of the case including the credibility of the eyewitnesses were made by the learned counsel for the appellant, but his main contention, which was appearing to be finding favour of my esteemed senior brother Hon'ble B.A. Zaidi,J, was that even if the entire prosecution version and evidence are accepted to be true on their face value, the case would not travel beyond section 304 IPC and hence the appellant deserves bail in this case. The contention of the learned counsel for the appellants was that there was no intention on the part of the appellant to cause the death of deceased and he had given only one blow by gupti, due to which the offence of murder punishable under section 302 IPC would not be made out in this case.
6. Next submission made by the learned counsel for the appellant was that this appeal can not be heard in the next one hundred years, because about 70,000 criminal appeals are pending in this High Court and about seven or eight thousand appeals are being filed in a year, whereas the disposal of the appeals is not more than one thousand in a year and hence under this situation the appellant cannot be detained in jail till his death. It is worthwhile to mention at this very stage that such type of arguments are being made by the members of Bar in other appeals also, where the appellants-accused are languishing in jail for considerable long time. While making such submission in one case, reliance was placed on Babu Singh and others vs. State of U.P. AIR 1978 SC 527 and Kashmira Singh vs. State of Punjab AIR 1977 SC 2147.
7. The learned AGA on the other hand submitted that bodily injury sufficient in the ordinary course of nature to cause death was inflicted to the deceased by the appellant-accused Anees by pierce a gupti in his chest, hence Clause 'thirdly' of section 300 IPC is squarely attracted in this case and since the case is not covered by any Exception of Section 300 IPC, hence the offence of murder punishable under section 302 IPC is clearly made out in this case.
8. It was further submitted by learned AGA that after conviction, merely on the basis of the detention in jail, the appellant-accused cannot be admitted to bail without looking to the merit of the case and nature of the offence committed by him.
9. Having given my thoughtful consideration to the rival submissions made by the parties counsel, I entirely agree with the submission of the learned AGA that merely on the basis of the period of detention in jail after conviction, the appellant-accused cannot be released on bail in all cases without looking to the nature of the offence and merit of the case.
10. Although it would not be proper at this stage to express any final opinion as to what offence is made out in this case, but from the evidence on record, this fact is borne out that bodily injury sufficient in the ordinary course of nature to cause death was inflicted to the deceased by the appellant Anees by piercing a gupti in his chest. As would appear from section 300 IPC, if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflected is sufficient in the ordinary course of nature to cause death and if the case is not covered by any of the Exceptions enumerated in this section, then clause 'thirdly' of section 300 would be attracted in such case and the offence of murder punishable under section 302 IPC would be clearly made out. Illustration (c) of section 300 IPC is also relevant in this regard, which reads thus:-
(c ) A intentionally gives Z a sword-cut or club- wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z's death.
In view of clause 'thirdly' and illustration (c) of section 300 IPC, it is fallacious to contend that where death is caused by single blow, offence of murder punishable under section 302 IPC would not be made out.
11. In the present case, according to the evidence of the eyewitnesses examined by the prosecution during trial, a gupti was pierced by the appellant in the chest of the deceased, which proved fatal to his life and he died instantaneously. By piercing gupti in the chest of the deceased, the appellant had certainly intended to cause bodily injury to the deceased and since the bodily injury inflicted to the deceased by piercing gupti in his chest was sufficient in the ordinary course of nature to cause death, hence Clause 'thirdly' of section 300 IPC would squarely be attracted and since the case is not covered by any of the Exceptions mentioned in this section, hence prima facie offence of murder punishable under section 302 IPC is clearly made out in this case.
12. If accepting the submissions made by the learned counsel for the appellant, it is assumed for the sake of argument that the offence under section 304 IPC only would be made out in this case, even then in my considered opinion, the appellant does not deserve bail in this case, because due to very trivial matter of altercation at the time of panja fighting, the appellant caused the death of a young boy aged about 22 years without any justification. In this regard, I would like to refer an order passed by the Hon'ble Apex Court on 10.09.2008 in Crl. Appeal Nos. 1452-1455 of 2008 (arising out of S.L.P. (Crl.) Nos. 5956-5959 of 2008) and Crl. Appeal Nos. 1456-1457 of 2008 (arising out of S.L.P.(Crl.) Nos. 6244-6245 of 2008). These appeals pertain to Uphar Cinema Tragedy of New Delhi, in which certain persons had died due to fire incident in Uphar Cinema. The accused Nirmal Singh Chopra and Ajit Chaudhary were convicted by the trial court under section 304 read with section 36 IPC and sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rupees five thousand each with default stipulation. Both the accused preferred appeals in Delhi High Court, which granted bail to them during pendency of the appeals. The Association of Victims of Uphar Cinema Tragedy went to the Apex Court and preferred above mentioned criminal appeals along with Special Leave Petitions (Crl.). The Hon'ble Apex Court vide its order dated 10.09.2008 cancelled the bail of the accused Nirmal Singh Chopra and Ajit Chaudhary holding that the High Court was not justified in granting bail to them. The conviction of the accused persons in that case was based on certain omissions and hence, they were convicted under section 304 with the aid of section 36 IPC. In the present case, the appellant had pierced a gupti in the chest of deceased thereby causing his instantaneous death. Therefore, grant of bail to the appellant would not be justified in this heinous crime.
13. I am conscious that large number of criminal appeals are pending in this High Court, but I find no force in the contention of the learned counsel for the appellant that disposal of this appeal would take more than 100 years. If the learned counsel for the appellant is ready to argue, this appeal can be decided expeditiously after the paper books are prepared. No delay has been caused by the Court in disposal of the appeal, because the counsel of the appellant himself had taken dates to make his submissions on the matter of bail. From the order sheet, it is revealed that adjournments were sought by the counsel of the appellant on 14.08.2007 and 28.11.2007. None appears to argue the bail on 22.08.2008. Therefore, in my opinion, bail cannot be granted to the appellant merely on the basis of the period of his detention in jail after conviction.
14. The Hon'ble Apex Court has observed in the case of Siddharth Vasisth @ Manu Sharma vs. State (NCT) JT 2008 (6) SC 467 that if the criminal appeal would not be heard for long and not disposed of within a 'measurable distance' of time, it would not be in the interest of justice to keep the accused in jail for number of years and it would be appropriate, if the power under section 389 Cr.P.C. is exercised in favour of the appellant-accused. I have carefully gone through Siddharth Vashistha case (supra). It is nowhere held by the Hon'ble Apex Court that merely on the basis of the period detention in jail after conviction, all the accused be released on bail without looking to the merit of the case and nature of the offence. The afore-cited observations made by the Hon'ble Apex Court in Siddharth Vasistha case (supra) should not be misunderstood to mean that after conviction, the appellant-accused in all cases be released on bail merely by saying that the appeal would not be heard and disposed of within a 'measurable distance' of time. Had the Hon'ble Apex Court intended to lay down that after conviction, all the accused would be released on bail merely on the basis of the period of detention in jail, then it could very well say that after conviction, all the accused be released on bail without going into merit of the case and nature of the offence, as the hearing of the appeals would take long time. What would be a 'measurable distance' of time for granting bail to the accused, if the appeal has not been decided, has not considered by the Hon'ble Apex Court in case of Siddharth Vasistha (supra). This matter was considered by the Hon'ble Apex Court in the case of Smt. Akhtari Bi vs. State of M.P. JT 2001 (4) SC 40, in which it is observed that "it is incumbent upon the High Courts to find ways and means by taking steps to ensure the disposal of criminal appeals, particularly such appeals where the accused are in jail, that the matters are disposed of within the specified period not exceeding 5 years in any case. Regular Benches to deal with the criminal cases can be set up, where such appeals be listed for final disposal". The Hon'ble Apex Court further observed that "We feel that if an appeal is not disposed of within the aforesaid period of 5 years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the Court. In computing the period of 5 years, the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted." In the said judgment, it is further held by the Hon'ble Apex Court that "there may be cases where even after the lapse of 5 years, the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them" (underlining is mine). Therefore, having regard to the observations made by the Hon'ble Apex Court in the case of Smt. Akthari Bi vs. State of M.P.(supra), I am not inclined to release the appellant-accused on bail in present case.
15. After making aforesaid observations, the Hon'ble Apex Court has requested the Chief Justices of the High Courts that "where the criminal cases are pending for more than 5 years to take immediate effective steps for their disposal by constituting regular and special benches for that purpose". Therefore, in this High Court also, special and exclusive Benches to hear the appeals of the accused who are languishing in jail for a long period may be constituted by Hon'ble the Chief Justice and if the members of Bar would co-operate with the Benches, such appeals can be decided expeditiously.
16. The Hon'ble Apex Court in the case of Vijay Kumar vs. Narendra & others (2002)9 SCC 364 and Ramji Prasad vs. Rattan Kumar Jaiswal (2002) 9 SCC 366 has observed that "In considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder". The above position was highlighted again in Kishori Lal vs. Rupa & others 2004 (7) SCC 638 and in Vasant Tukaram Pawar vs. State of Maharashtra 2005 (5) SCC 281. Therefore, having regard to the observations made by the Hon'ble Apex Court in the cases mentioned herein-above, the appellant-accused Anees cannot be released on bail merely on the basis of the period of his detention in jail after conviction without looking to the merit of the case and nature of offence committed by him.
17. The general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force is not merely an offence committed in relation to the person who suffers harm, but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, I am not in favour of granting bail merely on the basis of the period of detention of the accused in jail either before or after conviction without considering relevant factors like the nature of accusation made against them, manner in which the crime was committed, the gravity of the offence and disability of releasing accused on bail after they have been convicted for committing serious offence like murder punishable under section 302 IPC or other heinous offences.
18. It is significant to note that all the decisions of the Hon'ble Apex Court only lay down broad guidelines which the courts must bear in mind while dealing with an application for grant of bail to an appellant. None of the decisions lay down any invariable rule for grant of bail on completion of a specified period of detention in custody. Indeed in a discretionary matter, like grant or refusal of bail, it would be impossible to lay down any invariable rule or evolve a strait jacket formula. The Court must exercise its discretion having regard to all the relevant facts and circumstances. What the relevant facts and circumstances are, which the Court must keep in mind, have been laid down over the years by the courts in this country in large number of decisions which are well known. It is, therefore, futile to attempt to lay down any invariable rule or formula in such matter. The decision of the Hon'ble Apex Court on the matters about granting or refusing bail should not be understood to have laid down any invariable rule to be observed with mathematical precision.
19. For the reasons mentioned herein-above, prayer for bail of the appellant-accused Anees is hereby rejected.
The Office is directed to prepare typed copies of the paper books within two months and list the appeal for hearing immediately thereafter.
Dated: 18th October, 2008.
v.k.updh.
Hon'ble B.A. Zaidi,J.
I have had the advantage of perusing the order of my learned brother Hon'ble Mr. Justice Vijay Kumar Verma.
In the particular circumstances of the case, I agree with the order proposed by my learned brother. I would, however, like to clarify that the question whether the case would fall under Section 304 or 302 Indian Penal Code, was only in the nature of a discussion and no definite view was formulated about the same. This question will be, one of the important issue to be decided at the time of hearing of appeal after arguments, and no view about the same, need be expressed at this stage, as that would be pre-judging the issue.
Dated: 18th October,2008.
n.u.
