Kashmiri Lal vs State of Punjab

M.M. Punchhi, J. (Oral)

These two petitions for bail being Cr.M.Nos. 3971M and 3972M of 1984 have been preferred by an income tax practitioner by the name of Kashmiri Lal practising at Mansa town in district Bhatinda (Punjab)

Broadly stating, he is involved in two crimes. On 2151984, sometimes in the evening hour, he was said to be amongst a group of people who led a mob to Police Station Mansa. The cause apparently was to protest against the murder of on Joginder Nath, President of the Hindu Suraksha Samiti, Mansa The mob collected in front of the police station and shouted, slogans against the police for the murder of Joginder Nath. The mob then turned disorderly throwing brickbats at the police station, the gate of which was closed by a police constable. Thereafter, the mob indulged in arson, the tables of the Court close by and of the lawyers were set to fire as also two tractors in the municipal office, a car and cycles etc. Some Court record was also statedly burnt. The first information report was recorded at 9.45 P.M. the same day at the police station vide F.I.R No. 181.

On the next day i.e. on 22.5.1984. the dead body of Joginder Nath afore mentioned was being taken to the cremation ground, the procession thereof was statedly led by the petitioner. When the procession was on the turning of a street, the members thereof started slogans against the local police and pelted brickbats. A warning given to them by the sub Divisional Magistrate, Mansa too proved futile and then firing was resorted to by the police. The infuriated processionists burnt down the police assistance booth near the bus stand. A first information report regarding this incident was recorded at the police station at 9.30 A.M.

As is obvious, the petitioner was accused of being a leader of the mobs. It is undisputed that he was not attributed any overt act towards the brickpelting or arson. It is also undisputed, as is plain from the affidavit filed by the SubDivisional Magistrate, Mansa, that the petitioner was apprehended 2651994 in the aforesaid two F. I.Rs. but he was released to surrender again on 361984 after the last rites of Joginder Nath deceased. The petitioner was also supposed to participate in the deliberations of the peace committee formed by the authorities to restore normalcy in the town. Seemingly was also given a curfew pass to move about for the purpose.

Now in this background, bail has been claimed for the petitioner on two grounds(1) that he had at best led a peaceful assembly/procession to protest against the murder of Joginder Nath as also his fueral, but in no case could it be said in either situation that he had led an unlawful assembly and (2) that he was a lawyer and not a person with shady antecedents which would impel the Court to withhold the concession of bail from him. The, learned Assistant Advocate General, Punjab on the strength of the mass of laws which have come about in this duration has vehemently contended that the petitioner is not entitled to bail.

I have carefully considered the contentions raised. Having regard to the provisions of sections 3 and 4 of the Prevention of Damage to Public Property Ordinance, 1984, which came into operation on 28th January, 1984, it is to be seen that the offender committing mischief by doing any act in respect of any public property is to be dealt with under the provisions aforesaid. Mischief for the purpose of the said Ordinance is required to have the same meaning as in section 425 of the Indian Penal Code. Offences, under sections 416 and 427 of the Indian Penal Code, for which the petitioner has specifically been accused of are of the same species like the said offences under the aforesaid Ordinance. Now under the Terrorist Affected Areas (Special Courts) Ordinance 1984, section 436 of the Indian Penal Code is a scheduled offence as also offences under sections 3 and 4 of the Prevention of Damage to Public Property Act, 1984 (a substitute of the Ordinance). In the schedule or the Terrorist Affected Areas Ordinance Note4 has been added to say that the commission of an offence specified in the schedule by any member of an unlawful assembly shall be deemed to be a commission of that scheduled offence by every other member of the unlawful assembly. Now by a deeming provision, a member of an unlawful assembly, even though not doing any overt act, is deemed to have committed the offence, actually committed by another member of the assembly. And a `terrorist'' under the said Ordinance is defined to mean a person who indulges in wanton killing of persons or in violence or in the disruption of services or means of communications essential to the community or in damaging property with a view to (i) putting the public or any section of the public in fear; or (ii) affecting adversely the harmony between different religious, racial, language or regional groups or caste or communities; or (iii) coercing or overawing the Government established by law; or (iv) endangering the sovereignty and integrity of India.

In view of the aforesaid provisions, the discretion vested in the Court, inclusive of the High Court, defined under section 437, Criminal Procedure Code, to opine on the subject ''if there appear reasonable grounds for believing that he has been guilty" diminishes to a large extent. All what it now to be seen is whether the present accused was or was not a member of the unlawful assembly. If the Court comes to hold the opinion that he was, then there is no escape from the applicability of the fiction; more so when section 15 (6) of the Terrorist Affected Areas Ordinance specifically provides that the limitations on granting of bail specified in subsection (5) (referred to later). are in addition to the limitations under the Code or any other law for the time being in force on granting of bail. The main hurdle under the Code also is that the Court has to opine that there are exceptional and sufficient reasons to grant the accused bail. See section 439A, Criminal Procedure Code. Even if all those hurdles are crossed, then subsection (5) (b) of section 15 of the Terrorist Affected Areas Ordinance glaringly stands in the way which reads as follows :

"Where the Public Prosecutor opposes the application, the Court is satisfied that there are reasonable grounds for believing that he is not guilty of such offence and that he is not likely to commit any offence while on bail."

To vouchsafe the future conduct of the accused is an impossible task imposed on the Court. Antecedents of ''the, accused may provide some basis but by no means an infallible one. How a man''s mind may work in future, the future alone can tell. It cannot he forgotten though, that in terrorist affected areas, laws of the kind afore narrated have been brought into operation to combat an uncommon situation and the very air of terrorism, for which purpose, the law gives the power to the Central Government to notify particular area as the terrorist affected area. In that situation and polluted air the Court would normally not take on itself to hold that there are reasonable grounds for believing not only that the accused is not guilty of such offence but he was further not likely to commit an offence while on bail.

Reverting to the allegations in the first information reports, the petitioner was stated to have led the demonstration and the procession of the succeeding day. The wide definition of the expression ''unlawful assembly'' given in section 141, Indian Penal Code, would seem to place him as a member of the unlawful assembly despite his assertion to the contrary that he had his office closely and was likely to come to the scene of the occurrence out of curiosity. For the view I have expressed. I find no escape but to reject the prayer of the petitioner for bail in view of the tight provisions of law leaving little scope to the Court to grant bail. And present is the case in which I do not find that even that little discretion can be exercised. I cannot vouchsafe from the conduct of the petitioner that he would not in future be a member of an unlawful assembly and not commit an offence. In this view of the matter, these bail applications are rejected. However, nothing said herein would even remotely be taken to be an expression on the merits of the case. These observations are only meant to confine to the disposal of these petitions. JUDGMENT accordingly.

Sd/ M.M. Punchhi,

Judge.

August 13, 1984,

Oral prayer of the petitioner to take the matter to the Supreme Court is declined.