Ravi Kumar vs State of H.P.

Dev Darshan Sud, J.—The Petitioner has filed this application u/s 438 Code of Criminal Procedure seeking direction for release on bail in case he is arrested in FIR No. 105, dated23.3.2011 for offences under Sections 147, 148, 149, 307, 302 and 120B IPC registered with Police Station Paonta Sahib.

The case was initially listed on 6th May,2011, thereafter the Petitioner has been asked to attend the investigation. The Petitioner has been charged for offences under Sections 147, 148, 149, 307, 302, 120B IPC, registered with the Police Station, Paonta Sahib on 23.3.2011. This is a case of communal clash and also rioting and violence which ensued thereafter. Accused Sumit Bhardwaj, Nitish Kumar and Praveen Kumar were arrested on 23.3.2011 and accused Devinder Kumar, Rohit alias Sagar, Ajay Kimar alias Kachi and Gurpreet Singh were arrested on 29.3.2011. The case is at its investigation stage and the statements of various witnesses have been recorded. Spot witnesses are Shailender, Chetan, Narender Kumar, Sandip Kumar, Kuldip Singh, Devender Kumar alias Nagaand Asgar Ali, who, according to the prosecution, have given the vivid description of the incident and found involvement of the Petitioner in this case. The prosecution record further shows that on 9.4.2011, an attempt was made to arrest the Petitioner, but he could not be found and repeated visits of the police to his residence on 12.4.2011, 20.4.2011, 24.4.2011 and30.4.2011 proved futile. The case as put forth by the Petitioner herein is that he is innocent. The second point urged is that he has been falsely named in the FIR and in case he is arrested his entire career will be marred. It is submitted that on the alleged date of incident, he was attending Jagran of `Ma Durga'' at Ward No. 11, Nav Vihar Colony, Tehsil Paonta Sahib as he is playing Dholak at ceremonies.

Learned Deputy Advocate General submits that the incident is very gory which is one of the communal clash and arson rioting in which Government property, vehicles etc. were destroyed and a number of people killed and injured. The entire town of Paonta Sahib was in the grip of terror following the violence which could only be controlled after the intervention of the police. It is urged that the Petitioner being youngman of 20 years, his continuous detention would constitute punishment even before his trial and without having given him any chance of proving his innocence or otherwise. This is a case of mob violence in which individual responsibility is to be fastened on each person and in these circumstances the Petitioner deserves to be released. The second point urged is that the Petitioner herein has not been arrested on the date when the FIR was filed and in these circumstances, the prosecution is not serous about his custody but is only acting under pressure to establish that it is progressing in the case.

I have heard learned Counsel for the parties and have gone through the record.

Learned Counsel appearing for the Petitioner places reliance on the judgment of the Supreme Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, to urge that anticipatory bail is a rule as it relates to the liberty of an individual which is to be protected. This proposition of law of-course is well settled and there can be no dispute about this. However, looking to the incidents as recorded in the FIR where there has been a free for all, knives, sticks and stones have been used freely and where there has been a little regard for human life, safety, the savagery with which violence has been unleashed as manifested in the injuries on the person of the deceased as also those who survived the riots, extensive damage caused to public property by repeated acts of arson, I cannot persuade to hold that in such a serious situation this is a case in which powers u/s 438 can be invoked. Coupled with the statements of the witnesses noted supra who have pointed an accusing finger not only at the Petitioner but also to the other persons named in the FIR and who are now in judicial custody as also the fact that the Petitioner has avoided the initial arrest and interrogation, I do not find any merit in this petition at this stage which is accordingly rejected. If the custodial interrogation of the Petitioner is required at all, it shall not extend beyond 48 hours in the first instance. The Petitioner shall be medically examined and the State shall ensure that no torture, physical violence is inflicted on the Petitioner.

In case the Petitioner is taken into custody, he shall be produced before the Magistrate in accordance with law after the expiration of the first24 hours from the time he has been taken into custody and if the remand is extended thereafter again after 24hours thereafter. It will be open to the Petitioner herein to apply for bail afresh in accordance with law.