Amit vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest w.e.f. 28 June 2020, that is, for more than a year, on the allegations of assaulting and pushing Rohit

Paswan downhill, due to which he received head injury, and consequently died, has come up before this Court under Section 439 of CrPC, seeking

bail.

Earlier, the petitioner had filed the following bail petitions:

a). Bail application No.246 of 2020, filed by the applicant was dismissed by learned Additional Sessions Judge, Kullu, H.P. vide order 28.12.2020.

b). Cr.MP(M) No.830 of 2021, filed the petitioner before this Court was dismissed vide order dated 06.05.2021.

In Para 5 of the bail application, the petitioner declares having no criminal history. The status report also does not mention any criminal past of the

accused.

Briefly, the allegations against the petitioner are that on 28.06.2020, Mukesh Paswan, resident of Bihar, who was working as laborer with a

contractor, namely, Shri K.K. Mahajan, informed the police about the incident and upon such information the investigator recorded his statement under

Section 154 of Cr.PC. to the following effect: -

a) That he along with other laborer was working on a bridge being constructed near Sajla by Shri K.K. Mahajan, contractor. Along with complainant,

Mukesh Paswan, other laborer’s, namely, Bhopal Paswan, Dharminder Paswan, Dhananjay Kumar, Mithilesh Paswan and Rohit Paswan

(deceased) were also working.

b) On 23.06.2020 at 9:00 p.m., Mukesh Paswan, proceeded in his tipper for the security of the area and other persons went to sleep in their tin shed.

c) At about 12.15 a.m. in the mid night, one Sumo came from Haripur side and driver tried to cross the bridge. However, the bridge was on the higher

pedestal, as such, chamber (Oil filter) of Sumo struck with the concrete, due to which, oil started leaking. After this, occupants of the vehicle alighted

from the vehicle and even Mukesh Paswan came out of his tipper. They noticed that oil was leaking from the chamber of Sumo.

d) Mukesh Paswan told them not to drive the vehicle from the bridge because it was under construction. On this the said persons told him that is he

posted DC of the area and started hurling abuses to him. They told him that they will teach lesson to him and after that they returned in the vehicle.

e) After that, Mukesh Paswan visited the tin shed and informed the other persons about the occurrence. All of them woke up and were sitting in the

shed.

f) After fifteen minutes, all the three occupants of the vehicle, whose names later on revealed as Amit, Pritam and Ramesh, came there with sticks

and said that laborer were doing Gundagardi in the area and started beating them.

g) All labourer started running to save themselves from the beatings. These people caught hold of Rohit and he fell down in a Nallah (creek) 25-30

feet down. Complainant also fell down. However, he struck in the bushes and other two persons also ran away from the spot.

h) Rohit informed the contractor and contractor reached on the spot after about half an hour and then rescued them from the creeks.

i) On 24.06.2020, all these people compromised the matter between them.

j) However, on 28.06.2020 at mid night, Rohit became extremely unwell and he was brought to Mission hospital, where doctors told that he is dead.

k) Based on these allegations, the Police registered the FIR mentioned above.

Ld. Counsel for the petitioner argued that from the bare perusal of the charge sheet Annexure P-1, it is clear that on the intervening night of

23/24.06.2020 the said incident took place and the injury which the deceased had sustained, was not sufficient because on 24.06.2020, only X-Ray and

CT scan were conducted by the prosecution. Moreover, no grievous injury had been made out by the Medical Officer at that time, otherwise also, the

postmortem report was based on some extraneous pressure and there may be other reasons for the death occurred after five days of the incident, as

such, the petitioner cannot be liable for the said death. She further submitted that the incarceration before the proof of guilt would cause grave

injustice to the petitioner and family. She has further argued about the delay in lodging FIR, lack of motive, presence of sudden provocation and that

the matter was compromised. Ld. Counsel also contends that incarceration before the proof of guilt would cause grave injustice to the petitioner and

family.

On the contrary, the State contends that the Police have collected sufficient evidence against the bail petitioner and the co-accused. Another

argument on behalf of the State is that the matter was initially compromised between the parties which prima facie proves the involvement and

connects them with the crime and death. Ld. Additional Advocate General further contended that crime is heinous, the accused is a risk to law-abiding

people, and bail might send a wrong message to society. The alternative contention on behalf of the State is that if this Court is inclined to grant bail,

then such a bond must be subject to very stringent conditions.

The possibility of the accused influencing the investigation, tampering with evidence, intimidating witnesses, and the likelihood of fleeing justice, can

be taken care of by imposing elaborative and stringent conditions. In Sushila Aggarwal, (2020) 5 SCC 1, Para 92, the Constitutional Bench held that

unusually, subject to the evidence produced, the Courts can impose restrictive conditions.

REASONING:

I have heard the learned counsel for the parties and gone through the police file produced by the State. After perusing the police file, the same has

duly been returned to the learned Additional Advocate General as it is.

The incident pertains to the intervening night of 23rd and 24th June, 2020. After that all the three accused persons, namely, Amit, Pritam and

Ramesh entered into a written compromise with Rohit Paswan (deceased, who was alive on that day) and Mukesh Paswan. As per the contents of

this compromise, both the parties had suffered some kind of injuries. A perusal of the entire record reveals that the injuries, if any, received by the

accused, were not even superficial, however, without going into that, the compromise further reveals that accused persons shall bear all expenses for

the treatment of the injured. The other reason for compromise was that the accused persons had assured the injured that they would not cause any

kind of intimidation of beatings etc. to them. One of the witnesses of this compromise was Gopal Paswan, whose native place is that of the injured.

The police file also contains MLCs of Mukesh Paswan and Dharminder Paswan. These reveal that the beatings were given by sticks, but the injuries

were simple in nature.

As per the statement under Section 154 of Cr.P.C, injured Mukesh Paswan stated that while the accused persons attempted to drive through the

bridge, which was under construction, the chamber of Tata Sumo struck and oil spilt over because chamber ruptured. However, scrutiny of the police

file reveals that it was engine oil filter which was probably damaged and on 24th June, the accused purchased a new engine oil filter and receipt of the

same is on record.

Thus, it is revealed that the incident was initially not that serious, that is why, the parties compromised the matter. On 28th June, 2020, when

medical condition of Rohit became worsen, then he was taken to hospital, where he died and it led to the registration of FIR. If the Rohit had not died,

probably, the parties would have not reported the matter to the police.

A perusal of the statement under Section 154 of Cr.P.C, which is based on the statement of Mukesh Paswan and perusal of the statements under

Section 161 of Cr.P.C. of Gopal Paswan and other labourers present at the spot, reveal that initially some kind of altercation took place with Mukesh

Paswan, who was Chowkidar of the site and was in his tipper. The altercation took place as the accused persons tried to drive their Tata Sumo

through the bridge, which was under construction. To stop the damage to the bridge or may be to prevent the accused persons from falling down from

the bridge, Mukesh Paswan interfered and asked the accused not to drive their vehicle through the same. Since, the accused persons were natives of

that place and local persons and the labourers were outsiders from Bihar, as such, the accused bullied them. Had the labourers from Jammu and

Kashmir or Nepal, probably the accused persons would not have dared to bully them. However taking advantage of their being local and probably in

better health, they shouted at Mukesh and even told him that is he posted as Deputy Commissioner in this place and who is he to stop them.

After that, as per the statement under Section 154 of Cr.P.C. and the other statements, accused were retraced and again returned with Dandas

and started giving beatings to the labourers. To save themselves from the beatings, the labourers started running and as per the injured, the accused

pushed down Rohit Paswan and Mukesh Paswan. Rohit Paswan fell into the creek, whereas, Mukesh Paswan was able to roll down further because

he caught hold of some bushes and both of them received injuries by fall. It was after that the contractor reached at the spot and during day time, they

entered into a compromise.

A perusal of the site plan reveals that there is a slope because site was a bridge which was on the rivulet and usually the slopes of the hills on the

sides of rivulets are steeper. A perusal of MLC also reveals that the nature of injuries received by deceased Rohit Paswan were ante-mortem and

were abrasion marks and probably result of fall. The post-mortem does not point out any injury caused due to strangulation or knife blows or any

incised wound.

After completion of the investigation, although, the state has sought prosecution for the commission of offences, including that of murder

punishable under Section 302 of IPC, but the question before this Court is limited that as to whether the accused are entitled for bail on these facts or

not. Given the time of incident being midnight and since there is no description of any streetlight and it must be very dark, as such, it would be slightly

unsafe to assume that while giving push, the accused persons were aware of the fall/cliff.

The accused persons including the present petitioner are in jail for more than one year, hence, given the entirety of the facts and circumstances of

the case including the that fact that compromise had taken place and the time of incident was midnight and the weapon of offences were sticks

coupled with the fact that the accused persons do not have any criminal history, further incarceration would not be justifiable.

An analysis of entire evidence does not justify further incarceration of the accused, nor is going to achieve any significant purpose. Without

commenting on the case's merits, given the investigation stage, the period of incarceration already undergone, and the circumstances peculiar to this

case, the petitioner makes a case for release on bail.

Given the above reasoning, the Court is granting bail to the petitioner, subject to strict terms and conditions, which shall be over and above and

irrespective of the contents of the form of bail bonds in chapter XXXIII of CrPC, 1973.

In Manish Lal Shrivastava v State of Himachal Pradesh, CrMPM No. 1734 of 2020, after analysing judicial precedents, this Court observed that

any Court granting bail with sureties should give a choice to the accused to either furnish surety bonds or give a fixed deposit, with a further option to

switch over to another.

The petitioner shall be released on bail in the FIR mentioned above, subject to his furnishing a personal bond of Rs. Ten thousand (INR 10,000/-),

and shall furnish two sureties of Rs. Twenty-five thousand (INR 25,000/-) each, to the satisfaction of the Judicial Magistrate having the jurisdiction

over the Police Station conducting the investigation, and in case of non-availability, any Ilaqa Magistrate. Before accepting the sureties, the concerned

Magistrate must satisfy that in case the accused fails to appear in Court, then such sureties are capable to produce the accused before the Court,

keeping in mind the Jurisprudence behind the sureties, which is to secure the presence of the accused.

In the alternative, the petitioner may furnish a personal bond of Rs. Ten thousand (INR 10,000/-), and fixed deposit(s) for Rs. Ten thousand only

(INR 10,000/-), made in favour of Chief Judicial Magistrate of the concerned district.

a) Such Fixed deposits may be made from any of the banks where the stake of the State is more than 50%, or any of the stable private banks, e.g.,

HDFC Bank, ICICI Bank, Kotak Mahindra Bank, etc., with the clause of automatic renewal of principal, and liberty of the interest reverting to the

linked account.

b) Such a fixed deposit need not necessarily be made from the account of the petitioner and need not be a single fixed deposit.

c) If such a fixed deposit is made in physical form, i.e., on paper, then the original receipt shall be handed over to the concerned Court.

d) If made online, then its printout, attested by any Advocate, and if possible, countersigned by the accused, shall be filed, and the depositor shall get

the online liquidation disabled.

e) The petitioner or his Advocate shall inform at the earliest to the concerned branch of the bank, that it has been tendered as surety. Such information

be sent either by e-mail or by post/courier, about the fixed deposit, whether made on paper or in any other mode, along with its number as well as FIR

number.

f) After that, the petitioner shall hand over such proof along with endorsement to the concerned Court.

g) It shall be total discretion of the petitioner to choose between surety bonds and fixed deposits. It shall also be open for the petitioner to apply for

substitution of fixed deposit with surety bonds and vice-versa.

h) Subject to the proceedings under S. 446 CrPC, if any, the entire amount of fixed deposit along with interest credited, if any, shall be

endorsed/returned to the depositor(s). Such Court shall have a lien over the deposits up to the expiry of the period mentioned under S. 437-A CrPC,

1973, or until discharged by substitution as the case may be.

The furnishing of the personal bonds shall be deemed acceptance of the following and all other stipulations, terms, and conditions of this bail order:

a) The petitioner to execute a bond for attendance to the concerned Court(s). Once the trial begins, the petitioner shall not, in any manner, try to delay

the proceedings, and undertakes to appear before the concerned Court and to attend the trial on each date, unless exempted. In case of an appeal, on

this very bond, the petitioner also promises to appear before the higher Court in terms of Section 437-A CrPC.

b) The attesting officer shall, on the reverse page of personal bonds, mention the permanent address of the petitioner along with the phone number(s),

WhatsApp number (if any), e-mail (if any), and details of personal bank account(s) (if available), and in case of any change, the petitioner shall

immediately and not later than 30 days from such modification, intimate about the change of residential address and change of phone numbers,

WhatsApp number, e-mail accounts, to the Police Station of this FIR to the concerned Court.

c) The petitioner shall not influence, browbeat, pressurize, make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police

officials, or any other person acquainted with the facts of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to

tamper with the evidence.

d) The petitioner shall join the investigation as and when called by the Investigating Officer or any Superior Officer; and shall cooperate with the

investigation at all further stages as may be required. In the event of failure to do so, it will be open for the prosecution to seek cancellation of the bail.

Whenever the investigation occurs within the police premises, the petitioner shall not be called before 8 AM and shall be let off before 5 PM, and shall

not be subjected to third-degree, indecent language, inhuman treatment, etc.

e) In addition to standard modes of processing service of summons, the concerned Court may serve or inform the accused about the issuance of

summons, bailable and non-bailable warrants the accused through E-Mail (if any), and any instant messaging service such as WhatsApp, etc. (if any).

[Hon’ble Supreme Court of India in Re Cognizance for Extension of Limitation, Suo Moto Writ Petition (C) No. 3/2020, I.A. No. 48461/2020- July

10, 2020]:

i. At the first instance, the Court shall issue the summons.

ii. In case the petitioner fails to appear before the Court on the specified date, in that eventuality, the concerned Court may issue bailable warrants.

iii. Finally, if the petitioner still fails to put in an appearance, in that eventuality, the concerned Court may issue Non-Bailable Warrants to procure the

petitioner's presence and may send the petitioner to the Judicial custody for a period for which the concerned Court may deem fit and proper to

achieve the purpose.

Given the gravity of accusations and the heinous nature of the offence, the petitioner shall surrender all weapons, firearms, ammunition, if any,

along with the arms license to the concerned authority within 30 days from today and inform the Investigator about the compliance. However, subject

to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case.

The petitioner shall neither stare, stalk, make any gestures, remarks, call, contact, message the witnesses, either physically, or through phone call

or any other social media, nor roam around the witnesses' homes. The petitioner shall not contact them.

During the trial's pendency, if the petitioner repeats or commits any offence where the sentence prescribed is more than seven years or violates

any condition as stipulated in this order, it shall always be permissible to the respondent to apply for cancellation of this bail. It shall further be open for

any investigating agency to bring it to the notice of the Court seized of the subsequent application that the accused was earlier cautioned not to indulge

in criminal activities. Otherwise, the bail bonds shall continue to remain in force throughout the trial and after that in terms of Section 437-A of the

CrPC.

Any advocate for the petitioner and the Officer in whose presence the petitioner puts signatures on personal bonds shall explain all conditions of

this bail order, in vernacular and if not feasible, in Hindi.

In case the petitioner finds the bail condition(s) as violating fundamental, human, or other rights, or causing difficulty due to any situation, then for

modification of such term(s), the petitioner may file a reasoned application before this Court, and after taking cognizance, even to the Court taking

cognizance or the trial Court, as the case may be, and such Court shall also be competent to modify or delete any condition.

This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

In return for the protection from incarceration, the Court believes that the accused shall also reciprocate through desirable behavior.

The SHO of the concerned Police Station or the Investigating Officer shall arrange to send a copy of this order, preferably a soft copy, to the

victim, within two days. In case the victim notices any objectionable behavior or violation of any terms or conditions of this order, the victim may

inform the SHO of the concerned Police Station or the Trial Court or even to this Court.

There would be no need for a certified copy of this order for furnishing bonds. Any Advocate for the petitioner can download this order along with

the case status from the official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the

authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

In the facts and circumstances peculiar to this case, the petition is allowed in the terms mentioned above.

Copy Dasti.