Om Prakash Dwivedi Vs The State

@JUDGMENTTAG-ORDER

I.S. Mathur, J.@mdashThis is a bail application on behalf of Sri Om Pradash Dwivedi in Crime No. 1156 of 1993, under Sections 307/332 IPC and Section 7 Criminal Laws Amendment Act, P. S. Kotwali City, District Faizabad.

2. The applicant is a practising Advocate in the outlying court at Akbarpur, district Faizabad, and the victim/complainant was the presiding Officer of the court at Faizabad. According to the prosecution the applicant had filed a revision which was for consideration before the Presiding Officer. He approached the Presiding Officer in his chamber for hearing his revision and at the time he was accompanied with two other lawyers. He insisted that his revision should be admitted on that very day and orders passed. The Presiding Officer (Sri Ojha) summoned the file through his Reader and went through it. He told the applicant that lawyers were on strike on that date and it may not be possible to take up the matter. It is further alleged by the prosecution that the applicant then took out an iron rod from his bag and assaulted Sri Ojha saying that "AAJ MAIN TUMHE JAAN SE MAR DALUNGA, PHIR DEKHA JAYEGA". The accused applicant was then apprehended at the spot by some lawyers and court employees who were present in the chamber of Sri Ojha. Sri Ojha sustained head injury and was kept in the hospital for 23 days. A first information report was also lodged against the applicant on that very day.

3. I have heard the learned counsel for the applicant and the learned Additional Govt. Advocate.

4. The learned counsel for the applicant has pressed for bail on the main ground that the detention of the applicant is in violation of Article 22(1) of the Constitution and Section 50 of the Code of Criminal Procedure. His submission was that, if reasons for arrest and detention are not disclosed to the accused as required by Article 22(1) of the Constitution and Section 50 of the Code of Criminal Procedure, the detention will be illegal and the will be entitled to bail. Reliance has been placed by him upon the following decisions:-

(1) In the Matter of In the Matter of Madhu Limaye and Others, . (2) Ram Chandra alias Munai v. Supdt. Central Jail, Naini 1982 LLJ 160 UP. (3) Shanna @ Lulla v. State of U.P. 1986 LLJ 269. (4) Subhash Bhandari v. State of U.P. 1986 LLJ 271 UP. (5) Hazari Lal v. State of U.P. 199 I LLJ 230. (6) Majeed v. State 1992 LLJ 84. (7) Ram Akbal Pandey v. State of U.P. 1992 LCR 305. (8) Mujeeb v. The State of U.P. 1992 LCR 354. (9) Ramakant Verma alias Chhalilu v. State of U.P. 1992 LCR 381.(10) Shiv Paltan v. The State 1993 LLJ 210 (11) Vikram v. The State, Cril. Misc. Case No. 2755 (B) of 1993. (12) Ashok Kumar Singh v. State of U.P. 1987 LLJ 273.

5. The submission of the learned counsel for the applicant that if detention is in violation of the provisions contained in Article 22(1) of the Constitution or Section 50 of the Code of Criminal Procedure, the detention will be illegal and the applicant will be entitled to bail is quite correct and it has been so laid down in the decisions relied upon by him, not so the inference that in the present case the reasons for detention were not known or may not be deemed to be disclosed to the applicant within the meaning of the aforesaid provisions. In the matter of In the Matter of Madhu Limaye and Others, Hon''ble Supreme Court referred to and reiterated the following observations of Viscount Simon in Christie v. Leachinsky (1947) 1 All ER 567 11:--

"The requirement that the person arrested should be informed of the reason why he is seized naturally does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. Lord Simonds gave an illustration of the circumstances where the accused must know why he is being arrested:

There is no need to explain the reasons of arrest if the arrested man is caught red-handed and the crime is patent to high Heaven."

(Emphasis supplied).

6. It is apparent from these observations that what is important is that the person concerned must be fully aware of the reasons for his detention and not really as to how these reasons have come to his knowledge, as has been explained in the observations of Viscount Simon "There is no need to explain handed and the crime is patent". In other words, according to these observations if a person is apprehended at the spot while committing the crime he must be deemed to be in the know of the reasons for his detention and failure of the concerned authorities to inform him of these reasons separately will not at all be material and will not adversely affect the legality of his detention.

7. In Mushtaque Ahmad v. State of U.P. (1984) All 73 : 1984 Cri LJ 37 the applicant was caught red-handed by the complainant and others at the time of occurrence and was taken to the police station where the complainant lodged a report of the occurrence and handed over the applicant to the police. It was contended on behalf of the applicant that the detention of the applicant was illegal and he was entitled to bail. The decisions in Vimal Kishore Mehrotra Vs. State of Uttar Pradesh and Another, . In the Matter of Madhu Limaye and Others, and Ram Chabdra v. The Superintendent, Central Jail, Naini 1982 Cri 278 were cited before the learned Judge in support of this submission. On the facts of the case the learned Judge repelled the contention and held:-

"In this case the appellant was caught red handed by the complainant and others at the time of the occurrence and was taken to the police station where the complainant lodged a report of the occurrence and handed over the applicant to the police. In these circumstances it cannot be accepted that the applicant was not informed of the particulars of the offence for which he was arrested."

8. The observations made by the learned Single Judge in Mushtaq Ahmad''s case 1984 Cri LJ 37 (All) would appeal to be fully sustainable in view of the decision of the Hon''ble Supreme Court in the matter of In the Matter of Madhu Limaye and Others, particularly the observations endorsed and reiterated by the apex Court as indicated above. Therefore, with respect I fully subscribe to the view taken by the learned Single Judge in Mushtaq Ahmad v. State of U.P. (1984) All 73 : 1984 Cri LJ 37 (All).

9. Accordingly, it must be held that if the accused is apprehended at the spot while committing the crime, handed over to the police and detained, this detention cannot be challenged on the ground that provisions of Article 22 of the Constitution or Section 50 of the Code of Criminal Procedure have not been complied with. As is obvious from the observations of Viscount Simon, endorsed and reiterated by Hon''ble Supreme Court, the requirement that the person arrested should be informed of the reasons why he is seized does not exist if the circumstances are such that he must know the general nature of the alleged offence for which he is detained. Quite obviously, the object behind Article 22(1) of the Constitution and Section 50 of the Code of Criminal Procedure is as mentioned in the following observations of Supreme Court in In the Matter of Madhu Limaye and Others, :-

"The two requirements of Clause (1) of Article 22 are meant to afford the earliest opportunity to the arrested person to remove any mistake, misapprehension or misunderstanding in the minds of the arresting authority and, also to know exactly what the accusation against him is so that he can exercise the second right, namely of consulting a legal practitioner of his choice and to be defended by him."

When a person is apprehended while committing a crime and handed over to the public in the same transaction it is quite reasonable to presume that he fully understands the reasons of his arrest and detention so as to avail the right given to him under Article 22 of the Constitution. In such circumstance, therefore, it may not be considered to be imperative on the part of the arresting or detaining authority to disclose the reasons of detention and if this is not done, the detention, cannot be said to be illegal within the meaning of the aforesaid provisions.

10. In the special facts of this case, which are distinguishable from the facts in the other decisions cited by the learned counsel for the applicant and noted above, it is not necessary to discuss the other decisions in any further detail. None of those cases related to a circumstance where the applicant was arrested at the spot while committing the crime and handed over to the police.

11. As indicated above, in the present case the applicant was apprehended at the spot at the time of the commission of the crime and handed over to the police. Even a lay man would understand the reason of his detention in these circumstances. The applicant is an Advocate and as such a person conversant with law. Therefore, it is reasonable to presume that in these circumstances that he must have fully known the reasons of his detention. Accordingly, the submission of the learned counsel for the applicant that provisions of Article 22 of the Constitution or Section 50 of the Code of Criminal Procedure have been violated cannot be accepted.

12. The learned counsel for the applicant then contended that the injury caused could not have been fatal and on the facts on record, this cannot be said to be a case u/s 307 IPC, and that at best, it will be an offence u/s 324 IPC. His submission was that both Section 324 IPC, and Section 332 IPC are bailable and as such the applicant was entitled to bail. The learned counsel has placed reliance on Lukman v. State 1986 All WC 118 : 1986 All LJ 1186 in support of his submission. In this regard it will not be appropriate to record any positive finding because that may ultimately prejudice the trial. However, for the purpose of disposing of this bail application it may be observed that prima facie it is difficult to accept this submission at this stage. In State of Maharashtra Vs. Balram Bama Patil and Others, a similar plea was taken on behalf of the accused. The High Court accepted that plea and acquitted the accused for offence u/s 307 IPC. The State of Maharashtra went in appeal. It was contended on behalf of the State Government that the High Court committed an error in holding that the offence u/s 307 IPC was not made out merely because the injuries inflicted on the witnesses were in the nature of simple hurt and in these circumstances it was not possible to hold any of the accused persons guilty in respect of that offence. Hon''ble Supreme Court upheld this contention, set aside the judgment of the High Court and maintained the convictions recorded by the trial Court u/s 307 IPC Hon''ble Supreme Court referred to the provisions of Section 307 IPC. and observed as follows (at p. 333 of Cri LJ):-

"To justify a conviction under this Section it is not essential that bodily injury capable of causing death should have been inflicted. Although the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances, and may even, in same cases, be ascertained without any reference at all to actual wounds. The Section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to sec is whether the act. irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in this section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof."

13. It appears that this decision of Hon''ble Supreme Court in State of Maharashtra Vs. Balram Bama Patil and Others, was not brought to the notice of the learned single Judge who decided the case of Lukman v. State of U.P. 1986 All WC 118 : 1986 All LJ 1186 relied upon by the learned counsel for the applicant. In view of what has been laid down by Hon''ble Supreme Court it cannot be inferred. Merely on the basis of the fact that the injuries on the vital part were simple or could not have been fatal, that no case u/s 307 IPC would be made out. If the facts as indicated by Hon''ble Supreme Court in the aforesaid decision are made out it is not at all relevant that the resultant injury was simple or could not have been fatal, and what the Court has to see is whether the act. irrespective of its result, was done with the intention or knowledge and under the circumstances mentioned in the section.

14. Considering the facts at present on record and the law laid down by Hon''ble Supreme Court it cannot be said at this stage that no case u/s 307 IPC can be said to be prima facie made out. The matter will have to be investigated and it will be for the trial court to consider and dispose of the plea of the applicant-accused and determine whether any offence is made out or whether the offence made out would be u/s 307 IPC or under any other provision of the Indian Penal Code.

15. The learned counsel for the applicant lastly contended that the applicant is a person who sometime gets disbalanced and it may have been for this reason that he may have attacked the presiding Officer. This fact is denied in the counter affidavit filed on behalf of the State Government. This is also a matter which cannot be decided at this stage and will have to be looked into by the court at the appropriate stage.

16. If the facts as alleged by the prosecution are correct it is really most unfortunate that a practising Advocate should have taken, into his head to assault the Presiding Officer of the court with a view to obtaining an order in his favour or with a view to pressurising him to pass an order oil any particular date or time or for his refusal to do so. It has to be remembered that a person occupying the chair of the presiding officer of the Court is not an individual but a system, an institution an embodiment of justice in action. Any attack on him is not an attack on the individual but an attack on the system itself. It may be that in the view of certain person a presiding officer is not correct in his approach or he may even think that the presiding Officer is not impartial in his conduct. If any such grievance is there, the proper course is to take the matter to the higher authorities, judicially or administratively as the case may be. There is no reason to doubt that if any wrong has been committed, it will not be righted by the higher court or. if it relates to any administrative matter, by the District Judge or the High Court on administrative side. An attempt to obtain a favourable order by force or show of force or to react in such manner if order is not passed (sic) will surely destroy the system itself. It should be a combined effort both of the Bench and the Bar. to endeavour to save the, system with all our might. For the only alternative is chaos and confusion, rule of jungle rather than rule of law. Having known the lawyer community for the last more than 32 years, I have no hesitation in observing that a huge majority of them is sober, sincere, law-abiding and law promoting. According to the FIR some learned Advocates also joined the court employees in saving the presiding Officer from any further onslaught of the applicant. As of today an Advocate trying to take law into his own hands in this manner is an exception and not a rule not yet. However, horizon is getting hazier and there is an alarming feeling that this trend is increasing. It is my pious hope and expectation and prayer too that the sincere, sober, law abiding honourable members of the bar will, in their wisdom, exercise sobering influence on such errant minority to ensure that they do not try to destroy the system which gives sustenance to them and to the society. For such remedial action, the need is urgent and reasons are paramount. If such a trend is not immediately arrested, the paradise lost in our generation will be difficult to regain. None will be gainer by such a result.

17. Considering entire facts and circumstances at present on record, it must be held that no case for bail is made out at this stage.

18. It must, however, be observed that it will be just and proper if the trial of the case is concluded at the earliest. It is not clear whether the charge-sheet has been submitted. If the charge sheet has not been submitted the Investigating Officer shall'' conclude the investigation expeditiously and in case it is found that the charge-sheet is to be submitted, it must be submitted without further delay. In case the charge-sheet has been submitted the concerned Court will expedite the hearing of the case and conclude the trial at the earliest, say within a period of six months. It is also expected that the applicant shall co-operate. In case the applicant cooperates but the trial is not concluded expeditiously as noted above it will be open to the applicant to approach this Court again for bail. No observations made in this order shall be deemed to be binding upon the trial Court while deciding the case on merits.

19. Subject to the observations made above, this bail application is rejected.