Allowed

Reena Devi v. State of Hp

Himachal Pradesh HC1 Jul 2024CRMPM/643/2024

Case brief

AI extract

What is this about?

Petitioners sought anticipatory bail in an FIR alleging assault on a road-dispute victim hit by a hockey stick. Court found injury 'dangerous to life' is grievous hurt under Section 320(8) IPC and Section 307 not prima facie made out; no misuse or need for custody.

What did the court decide?

Interim pre-arrest bail order dated 02.04.2024 made absolute regarding FIR No. 42/2024 under Sections 341, 323, 427, 504 read with Section 34 IPC.

Reena Devi Vs State of Hp — Anticipatory Bail | Himachal Pradesh HC (2024)

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Neutral Citation No. ( 2024:HHC:4261 )

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IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

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Cr.MP(M) No.642 and 643 of 2024 Reserved on: 20.06.2024 Date of Decision: 01^st 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.

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Whether reporters of the local papers may be allowed to see the judgment? Yes

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Rakesh Kainthla,Judge

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The petitioners have filed the present petitions for

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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. 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

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that the present petitions be allowed and the petitioners be released on bail.

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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

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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.

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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.

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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

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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.

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Mr. Lokender Kutlehria, learned Additional Advocate General submitted that the petitioners are involved in the commission of a heinous offence. 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.

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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.

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I have given considerable thought to the submissions at Bar and have gone through the records carefully.

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It was laid down by the Hon’ble Supreme Court in P. Chidambaram vs. Directorate of Enforcement 2019 (9) SCC 24 that

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the power of pre-arrest is extraordinary and should be exercised

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sparingly. It was observed:-

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“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.”

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9. This position was reiterated in Srikant Upadhyay v.

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State of Bihar, 2024 SCC OnLine SC 282 wherein it was held:

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“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

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safeguard the freedom of an individual against unwarranted arrest and we say that such orders shall be passed in eminently fit cases.”

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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:

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“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.”

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The police stated in the status report that the victim

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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.

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Section 320(8) of IPC thus defines any hurt which endangers life or which causes the sufferer to be in severe bodily

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pain, or unable to follow his ordinary pursuits as grievous hurt.It

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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:-

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“10. When the doctor is required to carry out a medicolegal 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

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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'.

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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'.

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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.

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The expression 'dangerous' is an adjective and the expression 'endanger' is a verb. An injury, which can put

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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.

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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.

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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.

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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

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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.

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We are of the view that the Court is not absolved of the 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)

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Therefore, prima facie the offence punishable under Section 307 of IPC is not made out based on the medical opinion.

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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

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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.

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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.

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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

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doubtful. Hence, it cannot be said that a grave offence was found

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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.

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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.

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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.

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The observations made hereinabove are regarding the disposal of this petitions and will have no bearing, whatsoever, on the merits of the case.

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(Rakesh Kainthla) Judge

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01^st July,2024 (Ravinder)

Reena Devi v. State of Hp

Case brief

What is this about?

What did the court decide?

Reena Devi v. State of Hp

Case brief

What is this about?

What did the court decide?

What the court decided

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