Criminal Misc. -M No. 31087 of 2011 (1) IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Criminal Misc. -M No. 31087 of 2011 (O&M) Date of decision : 17.10.2011 Naresh and another .. Petitioners versus The State of Haryana .. Respondent Coram: Hon'ble Mr. Justice Rajesh Bindal Present: Mr. Raj Kapoor Malik, Advocate, for the petitioners. Rajesh Bindal, J. Prayer in the present petition is for grant of regular bail to the petitioners who are accused in FIR No. 39 dated 29.4.2010, registered under Sections 148, 149, 332, 353, 186, 436, 511, 341 IPC and Sections 3/4 of Prevention of Damages to Public Property Act, 1984, at Police Station Rajound, District Kaithal. Briefly, the facts of the case are that on 29.4.2010, the complainant along with other police officials had gone to village Kithana for conducting an enquiry into the death of one Kaptan son of Suresh. As the people were frustrated due to the sad demise of Kaptan with the presumption that the police was not taking action and were in the process of creating law and order problem, the police party was present on Bus Adda Kithana in order to maintain law and order situation. In the meantime, 40-50 persons came from Chahal Patti Gali, armed with lathies, Jaili, and stated that road shall be blocked and then only the administration will hear us. Some of them were identified and named in the FIR, however, names of some of them cropped up during investigation. All of them blocked the main Jind-Kaithal road in front of the mandir at 2.00 p.m. Kulbir alias Kallu son of Satbir, Rajmal son of Manga, Ajmer son of Miya Singh, etc. started deflating the tyres of the jammed vehicles. The complainant along with other police officials tried to pacify the said persons, but they refused to do so. Criminal Misc. -M No. 31087 of 2011 (2) The road remained blocked for about three hours. Kulbir alias Kallu son of Satbir, etc. who were leading the mob stated that the glasses of the Government buses should be broken and the police post of Kithana be put on fire. These persons started going to the police post of Kithana. They had broken the glasses of Bus Nos. HR-56/2970, HR-56/4332 of Jind Depot with bricks, dandas, lathies, etc. The said persons climbed on the roof of police post Kithana and put parali (Paddy husk) there and put the same on fire. They started throwing stones and bricks on the police personnel also. Tear gas shells had to be used by the police party to disperse the crowd from the spot. With the aforesaid allegations, the present case has been registered against the present petitioners and their co-accused. Learned counsel for the petitioners submitted that the petitioners have been falsely implicated in the present case. On coming to know about the aforesaid case registered against them, they themselves surrenderd before the court of Illaqa Magistrate on 6.4.2011. The petitioners are law abiding citizens and have been languishing in judicial custody for the last about six months. As trial is going to take some time, the petitioners be released on bail. After hearing learned counsel for the petitioner and perusing the paper-book, in my opinion, it is not a case for grant of regular bail to the petitioners at this stage. The kind of incident in which the petitioners are involved needs to be dealt with stern hands. It has become a routine for some people to take law in their own hands for any small incident. They come on road and damage public or private property. In case there is some death in any hospital, besides damaging the same, many a times even doctors and the staff are also beaten up. Taking note of various instances where there was large scale destruction of public and private property in the name of agitation, bandhs, and the like, Hon'ble the Supreme Court initiated suo motu proceedings. Two committees were appointed. One headed by Retired Judge of Hon'ble the Supreme Court and one headed by Mr. F. S. Nariman, a senior member of the Bar. The report given by Justice K. T. Thomas, which form part of judgment of Hon'ble the Supreme Court reported as Destruction of Public & Private Properties In Re. vs State of AP. and others 2009 (5) SCC 212, and Criminal Misc. -M No. 31087 of 2011 (3) the recommendations of Hon'ble the Supreme Court thereon are extracted below:- 5. The report submitted by Justice K.T. Thomas Committee has made the following recommendations: (i) The PDPP Act must be so amended as to incorporate a rebuttable presumption (after the prosecution established the two facets) that the accused is guilty of the offence. (ii) The PDPP Act to contain provision to make the leaders of the organization, which calls the direct action, guilty of abetment of the offence. (iii) The PDPP Act to contain a provision for rebuttable presumption. (iv) Enable the police officers to arrange videography of the activities damaging public property. 6. The recommendations have been made on the basis of the following conclusions after taking into consideration the materials. In respect of (i) 7. "According to this Committee the prosecution should be required to prove, first that public property has been damaged in a direct action called by an organization and that the accused also participated in such direct action. From that stage the burden can be shifted to the accused to prove his innocence. Hence we are of the view that in situations where prosecution succeeds in proving that public property has been damaged in direct actions in which accused also participated, the court should be given the power to draw a presumption that the accused is guilty of destroying public property and that it is open to the accused to rebut such presumption. The PDPP Act may be amended to contain provisions to that effect. In respect of (ii) 8. Next we considered how far the leaders of the Criminal Misc. -M No. 31087 of 2011 (4) organizations can also be caught and brought to trial, when public property is damaged in the direct actions called at the behest of such organizations. Destruction of public property has become so rampant during such direct actions called by organizations. In almost all such cases the top leaders of such organisations who really instigate such direct actions will keep themselves in the background and only the ordinary or common members or grass root level followers of the organisation would directly participate in such direct actions and they alone would be vulnerable to prosecution proceedings. In many such cases, the leaders would really be the main offenders being the abettors of the crime. If they are not caught in the dragnet and allowed to be immune from prosecution proceedings, such direct actions would continue unabated, if not further escalated, and will remain a constant or recurring affair. Of course, it is normally difficult to prove abetment of the offence with the help of direct evidence. This flaw can be remedied to a great extent by making an additional provision in PDPP Act to the effect that specified categories of leaders of the organization which make the call for direct actions resulting in damage to public property, shall be deemed to be guilty of abetment of the offence. At the same time, no innocent person, in spite of his being a leader of the organization shall be made to suffer for the actions done by others. This requires the inclusion of a safeguard to protect such innocent leaders." In respect of (iii) 9. "After considering various aspects to this question we decided to recommend that prosecutions should be required to prove (i) that those accused were the leaders or office bearers of the organisation which called out the direct actions and (ii) that public property has been damaged in or during or in the aftermath of such direct actions. At that stage of trial it should be open to the court to draw a presumption against such persons who are arraigned in the case that they have abetted the Criminal Misc. -M No. 31087 of 2011 (5) commission of offence. However, the accused in such case shall not be liable to conviction if he proves that (i) he was in no way connected with the action called by his political party or that (ii) he has taken all reasonable measures to prevent causing damage to public property in the direct action called by his organisation." In respect of (iv) 10. "The Committee considered other means of adducing evidence for averting unmerited acquittals in trials involving offences under PDPP Act. We felt that one of the areas to be tapped is evidence through videography in addition to contemporaneous material that may be available through the media, such as electronic media. With the amendments brought in the Evidence Act, through Act 21 of 2000 permitting evidence collected through electronic devices as admissible in evidence, we wish to recommend the following: (i) If the officer in charge of a police station or other law enforcing agency is of opinion that any direct action, either declared or undeclared has the potential of causing destruction or damage to public property, he shall avail himself of the services of video operators. For this purpose each police station shall be empowered to maintain a panel of local video operators who could be made available at short notices. (ii) The police officer who has the responsibility to act on the information that a direct action is imminent and if he has reason to apprehend that such direct action has the potential of causing destruction of public property, he shall immediately avail himself of the services of the videographer to accompany him or any other police officer deputed by him to the site or any other place wherefrom video shooting can conveniently be arranged concentrating on the person/ Criminal Misc. -M No. 31087 of 2011 (6) persons indulging in any acts of violence or other acts causing destruction or damage to any property. iii) No sooner than the direct action subsides, the police officer concerned shall authenticate the video by producing the videographer before the Sub Divisional or Executive Magistrate who shall record his statement regarding what he did. The original tapes or CD or other material capable of displaying the recorded evidence shall be produced before the said Magistrate. It is open to the Magistrate to entrust such CD/material to the custody of the police officer or any other person to be produced in court at the appropriate stage or as and when called for. The Committee felt that offenders arrested for damaging public property shall be subjected to a still more stringent provision for securing bail. The discretion of the court in granting bail to such persons should be restricted to cases where the court feels that there are reasonable grounds to presume that he is not guilty of the offence. This is in tune with Section 437 of the Code of Criminal Procedure, 1973 and certain other modern Criminal Law statutes. So we recommend that Section 5 may be amended for carrying out the above restriction. Thus we are of the view that discretion to reduce the minimum sentence on condition of recording special reasons need not be diluted. But, instead of "reasons" the court should record "special reasons" to reduce the minimum sentence prescribed. However, we felt that apart from the penalty of imprisonment the court should be empowered to impose a fine which is equivalent to the market value of the property damaged on the day of the incident. In default of payment of fine, the offender shall undergo imprisonment for a further period which shall be sufficient enough to deter him from opting in favour of the alternative imprisonment." Criminal Misc. -M No. 31087 of 2011 (7) In addition to the aforesaid directions on the basis of the committee headed by Justice K. T. Thomas, Hon'ble the Supreme Court had also directed for assessment of damages on account of destruction of public/ private property and recovery thereof. It was further directed by Hon'ble the Supreme Court that the recommendations of K. T. Thomas and F. S. Nariman committees, which have been approved by Hon'ble the Supreme Court shall immediately become operative as guidelines. The incident in question is quite serious. Besides blocking the road, damaging the public property as well as the private property, the agitators in the present case had even put the police station on fire. Considering the seriousness of allegations, in my opinion, the petitioners do not deserve the concession of bail at this stage. Accordingly, the petition is dismissed. ( Rajesh Bindal ) 17.10.2011 Judge vs