IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.M.M.O.No.144 of 2010. Judgment Reserved on: 26.07.2010 Date of decision: 28.07.2010 Court on its own motion … …Petitioner Versus State of H.P. & Others … …Respondents Coram The Hon’ble Mr.Justice Dev Darshan Sud,J. Whether approved for reporting ?1 Yes. For the Petitioner: Court on its own motion. For Respondent No.1: Mr.R.K. Bawa, Advocate General with Ms.Ruma Kaushik, Additional Advocate General. For Respondents No.2&3: Mr.Shrawan Dogra, Advocate. For Respondent No.4: Mr.Jagdish Vats, Advocate. For Respondent No.5: Mr.M.S. Chandel, Senior Advocate with Mr.Rakesh Jaswal, Advocate. Dev Darshan Sud,J. This case has been taken by the Court exercising its suo motu powers under Sections 397 and 401 of the Code of Criminal Procedure. The case pertains to the death of Aman Kachroo who is reported to have been ragged to death by respondents No.2 to 5 who are accused in this case in FIR No.68/09, registered with the Police Station, Kangra on 8.3.2009 1 Whether the reporters of Local Papers may be allowed to see the judgement? Yes. 2 and are facing trial for offences under Sections 302, 342, 506, 323 read with Section 34 of the Indian Penal Code. 2. The respondents were granted bail by the learned Additional Sessions Judge, Fast Track Court, Kangra at Dharamshala on 17.7.2010. The records of the case have been called for by this Court suo motu to ascertain the correctness, legality and propriety of the order. 3. Before adverting to the facts which prompted the learned Court below to grant bail, the general genesis of this case may be considered. The Supreme Court had taken notice of the prevailing conditions in Dr.Rajinder Parshad Medical College at Tanda in University of Kerala vs. Council, Principals’ Colleges, Kerala and Others, (2009)7 SCC 726. The Court had given directions in that case from time to time considering the growing menace of ragging and its traumatic physical and psychological consequences, and constituted a Committee known as “Raghvan Committee”. The report of this Committee was submitted to the Supreme Court and accordingly the Court directed a number of recommendations made by it to be followed/implemented. Those were at the All India level, however, referring specially to the College where Aman Kachroo was studying, the Court directed: ”7. In the case of freshers admitted to 3 a hostel it shall be the responsibility of the teacher in charge of the group to coordinate with the warden of the hostel and to make surprise visits to the rooms in the hostel where the members of the group are lodged. Freshers shall be lodged in a separate hostel block, wherever possible, and where such facilities are not available, the college/institution shall ensure that seniors' access to freshers' accommodation is strictly monitored by wardens, security guards and college staff. Ragging takes place mostly in the hostels after the classes are over in the college. A round the clock vigil against ragging in the hostel premises shall be provided. It is necessary that parents/ guardians of freshers assume responsibility for promptly bringing to the notice of the Head of the Institution any instance of ragging. 8. The Chancellor of the Himachal Pradesh University in consultation with the Raghavan Committee shall as a part time measure appoint a Committee to oversee the implementation of directions given in this order. Keeping in mind the seemingly violent history of RPGMC, a detachment of police be posted on the RPGMC campus till such time the Committee is satisfied of the maintenance of discipline on campus. 9. Departmental proceedings shall be initiated against the erstwhile principal of RPGMC, Dr. Suresh Sankhyan to ascertain his role in exacerbating ragging on campus, as well as his suitability as a faculty member and administrator. State of Himachal Pradesh, in its affidavit, has 4 stated that such proceedings have been commenced against Dr. Sankhyan, and that a charge.-sheet is expected to be issued to him presently.” (PP.732-733)(emphasis supplied) 4. The very fact that the Supreme Court had issued two directions, namely, posting of the Police personnel on the Campus to control the unruly behaviour of students and a direction issued to initiate Departmental proceedings against Dr.Suresh Sankhyan, is itself a very important fact to be considered and should have been kept in mind by the learned trial Court while considering the gravity and nature of the offence. Unfortunately, no attention has been paid to this fact which seems to have been glossed over by the learned Court below. The general principles for granting or not granting bail, consider the enormity and seriousness of the offence(s) and these two paragraphs in the judgment are indicative of the fact as to the prevailing conditions in the Medical College. I need not refer to the other aspect of the demoralizing affect of ragging which has engaged the attention of the Supreme Court not only in this case but also in Vishwa Jagriti Mission through, President vs. Central Government through Cabinet Secretary and others, AIR 2001 SC 2793. 5. Archaic colonial practices have been adopted as symbols of civilization with, scant respect to the 5 life and liberty of young students who join the University to be groomed as future professionals and responsible citizens of this country. The method of introduction of freshers, who join College/University, through physical violence or subjecting them to mental trauma cannot but be deprecated. Some bit of fun is understandable but carrying it to the extreme which ends up in death, injuries to the body or indelible trauma to the mind is not understood. 6. Prior to the institution of the present application(s) for bail before the learned Fast Track Court, it is undisputed before me that respondents No.2 to 5 had filed application(s) for release on bail before the learned Sessions Judge on 31.8.2009 under Section 439 of the Code of Criminal Procedure on 8.3.2009. Charge against these respondents had been framed on 11.8.2009. Those four applications were filed before the evidence of the prosecution was recorded and which was fixed for 20th October, 2009. The applications state that the allegations against the respondents are that in the intervening night of 6th/7th of March, 2009, all the accused persons who were Senior Students of Dr.Rajinder Parshad Medical College, Tanda, went to the hostel of Ist Year Students and around 2 A.M. at the night. They were in drunken state. They assembled the Ist Year Students in the common room and beat them up in the name of ragging. Aman Satya Kachroo, succumbed to the injuries on the 8th at around 6 7.00 P.M. It was urged before the Court that at that time there were material contradictions in the medical evidence as also evidence of the eye witnesses. It was pleaded that the respondents had no intention to commit the offence of murder though their only intention being that of ragging the students and to have some fun. An important point urged was that Aman had died because of an enlarged heart which was the cause of cardiac arrest and not as a result of ragging. This fact had been ascertained by a magisterial inquiry. The learned Court rejected these applications. 7. In this Court Cr.M.P.(M) No.801 of 2009 was preferred by Mukul Sharma, one of the respondents, on 9th September, 2009 in which amongst other grounds urged for releasing him on bail, it was mentioned that though an application for bail had been filed before the learned Fast Track Court, but the findings arrived at by the learned Court were not correct. To similar effect was the application Cr.M.P.(M) No.802 of 2009 filed by Abhinav Verma. Both these applications were disposed of separately on 17th September, 2009, but the order was the same which is reproduced hereunder:- “Heard for some time. At this stage, learned counsel for the petitioner seeks permission to withdraw the petition. Therefore, the same is dismissed as withdrawn.” 7 8. Thereafter, prosecution witnesses were examined between 22.10.2009 to 25.5.2010 when the next date for examination of the remaining witnesses was fixed for 2.8.2010, 4.8.2010 and 6.8.2010. In the meanwhile, on 28.6.2010, the respondents herein again moved the learned trial Court under Section 439 of the Code of Criminal procedure by four separate applications praying for being admitted to bail. These applications were allowed on 17.7.2010 and are the subject matter of the present proceedings. The State has moved the learned Fast Track Court on 20.7.2010 for cancellation, but before any action could be taken, this Court took suo motu cognizance of the case on 22.7.2010 and that is how this has been placed before this Court for further consideration. All four applications were disposed of by a common order. 9. In case of Mukul Sharma, the application states that after the examination of PW-22, Dr.D.P. Swamy, Professor and Head of the Department of Forensic Medicine of Dr.Rajinder Parshad Medical College, Tanda, who has been examined on 14.5.2010, the case of the prosecution was that ragging had taken place on the intervening night of the 6th/7th March, 2009 at around 2.00 A.M. and continued till 4.30 A.M. in the morning. But from his evidence, according to the learned counsel appearing for the respondents, there was another ragging incident which took place on 8.3.2009 at about 3.45 P.M. The allegation was that the assailants of 8 this incident had not been identified or apprehended and that the prosecution was now toeing a totally different line. The second allegation was that out of the 72 witnesses cited, 26 material witnesses had been examined and only 20 witnesses, who are to be examined, are either doctors or police officials who could not be influenced by the applicants in any manner. Even if the allegations of the prosecution were taken on the face value, it is the first ragging which has been established and at best offences under Sections 323 and 347 of the IPC were made out, which, according to the applicants, were only pranks and no case under Section 302 was made out. 10. To similar effect are the allegations made by respondent Abhinav Verma in his application. These applications were resisted by the State. One of the important allegations made was that against three of the respondents, namely; Avinabh Verma, Mukul Sharma, Naveen Verma, FIR No.286/2008, dated 26.7.2008 under Sections 147, 148, 149, 452, 506, 323 of the Indian Penal Code has been registered in Police Station Kangra and the case is pending in the Court. The prosecution submitted that the offences of murder were serious and heinous in nature and that the allegation that the evidence of Dr.D.P.Swamy PW-22 exonerates them is not correct. 11. Learned trial Court, after noticing the facts, detailing the dates of the previous applications 9 moved by the respondents both before the trial Court as also this Court, has allowed the applications. But before adverting to the order, I must note that Cr.M.P.(M) No.213 of 2010, titled: Abinav Verma vs. State, Cr.M.P.(M) No.214 of 2010, titled: Mukul Sharma vs. State, Cr.M.P.(M) No.215 of 2010, titled: Naveen Verma vs. State and Cr.M.P.(M) No.278 of 2010, titled: Ajay Verma vs. State were disposed of by this Court on 5th April, 2010 with the direction to the learned trial Court to proceed with the case on day to day basis. One observation was made by this Court that is, liberty was granted to the petitioner to move the trial Court for bail afresh in accordance with law. Adverting to the order passed by the learned Sessions Judge, subject matter of the present proceedings, the Court holds the principles on which bail is to be granted under Section 439 of the Code have been set out by this Court in Col.Ramesh Chandera vs. State of H.P., 2002 Cri.L.J., 1031. The learned Judge then continues that no doubt the respondents have been charged for an offence inter alia under Section 302 of the Indian Penal Code, but this alone cannot be a ground for rejecting their applications as held by this Court in Jeet Ram and others Vs. State of H.P. and others, Latest HLJ 2003 HP Page 23. The Court observed that in this case this Court held that other factors, namely, whether the accused would abscond or tamper with the evidence etc. 10 are important factors. The operative part of the order reads:- “10. After due consideration, to my mind definitely there are certain factors which are going in favour of the accused at this stage. As discussed hereinabove, all the principal witnesses including eye witnesses have been examined and there is no likelihood of the accused to influence the remaining prosecution witnesses. Further all the accused are students of MBBS and they are in custody since March, 2009. None of them has criminal history or there is anything objectionable past record of any of them. Therefore, only in view of gravity of offence there personal liberty cannot be curtailed. At this stage, the factors to be considered while granting bail as summed up by the Hon’ble High Court as discussed hereinabove, in the matter of 2002, Crl.L.J. 1031 are going in favour of the accused persons.” 12. Then he concludes that the cumulative effect of this discussion is that no fruitful purpose would be served in detaining the respondents in custody and therefore, they are released on bail. The other part of the discussion are the arguments of the learned defence counsel that in view of the medical evidence on record no prima facie case under Section 302 IPC is made out, but the Court refused to express any opinion on this aspect. Again the Court considered another aspect that the respondents had no intention to commit 11 murder and it is only with the intention of ragging that they had only administered a few slaps to the Ist Year students which manifested no intention of murder or assault. The Court then relies upon the judgment of this Court in Yogesh Soni vs. State of H.P., 1984 SEP(HJ) 9 H.P., to hold that if there is no intention to murder, no offence is made out. The Court then concludes,”Similarly, in our case also the accused persons have been charged under Section 302 IPC and for the reasons discussed hereinabove they can be released on bail.” In purport and effect what the Court below does is to support its findings holding that there are certain weighty reasons on the basis of which the respondents can be released and further coming to the conclusion that the respondents have no intention of killing/murdering Aman Kachroo. This exercise is judicially impermissible at this stage. It was no business of the trial Court to have pronounced on the veracity of the defence as elicited in cross- examination of the witnesses of the prosecution and then holding that no prima facie case has been made out against the respondents, or that their defence has been probabalized. What are those factors which prompted the learned Court to release the respondents on bail is not clear from a reading of the ratiocination of the judgment of the Court below, but discernible only by implication that the prosecution has been unable to prove its case and observations to that effect. 12 13. Learned counsel appearing for the respondents have urged a number of points in support of their contention. Learned Senior Counsel Shri M.S. Chandel submits that from a prima facie examination of some of the evidence of the witnesses of the prosecution itself it is clear that no offence of 302 of the Indian Penal Code is made out and in case the respondents are detained in jail it would be miscarriage of justice. In particular he refers to the evidence of PW-1 Dr.Suresh Sankhyan (who is now under suspension), PW-2 Deepak Verma, Hostel Manager, Dr.Rajinder Parshad Medical College, PW-3 Dr.Pardeep Bansal, Assistant Professor, RPMGC, PW-4 Ashish Saklani, one of the boys who was ragged, PW-8 Sushant Kumar, another student who was ragged, PW-10 Vinay Bhardwaj, another eye witness, PW-19 Dr.P.S. Rana and PW-22 Dr.D.P. Swami to urge; (a) that the identity of the assailants of the deceased Aman Kachroo had not been established; (b) that it is in the evidence of these witnesses that Aman Kachroo had some heart ailment and may have died of that disease; (c) that there was another incident of ragging totally unrelated to the respondents who could not be held responsible for the death of Aman Kachroo; (d) that Ex.PW-4/A is a signed statement of Aman Kachroo made in his own handwriting before his death which only proves that he has been slapped by respondents and not brutalized in the manner which would cause death. 13 14. I cannot accept this contention of the learned counsel at this stage. The statements of the witnesses cannot be read in isolation but have to be considered as a whole and that too of each witness and only thereafter the end result has to be arrived at. This would require a meticulous examination and cannot be ascertained from a prima-facie reading of the evidence. But at this stage findings cannot be recorded while granting bail, more especially at the time when part of the prosecution evidence remains to be examined. A trial within a trial is not contemplated under Section 439 of the Code of Criminal Procedure. Prima facie, when the statements of the other witnesses including doctors who treated the deceased and other students who were ragged, forensic expert and witnesses who have recorded the statements under Section 164 of Code of the Criminal Procedure are to be recorded, it would be isolating the evidence and compartmentalizing it which would ultimately have bearing on the trial. I have not referred to the postmortem report which is a very important piece of evidence to which extensive reference has been made by the learned Advocate General which specifies the cause of death and does not support the case of the respondents. To say anything more would be to prejudice the case of the parties, at this stage. On Ex.PW-4/B all that I need to say is that it describes in graphic detail the brutality to which the deceased was subjected to by the respondents, who 14 according to him were in a drunken state. The deceased also writes that such incidents have been happening in the hostels and writes about the injuries of perforation etc. inflicted on him but I leave it at that. 15. Learned counsel, Shri Shrawan Dogra, submits that the order passed by the learned Sessions Judge reflects application of mind since the Court had been approached after framing of charge and the application was rejected after giving clear cogent reason and it was only after supervening events; namely; in the nature of evidence etc. have come on record that prompted the Court to grant bail. He submits that every time when application for bail was filed there were changed circumstances and the case has been blown out of proportion by the Media I need not say anything on this submission since this Court is not acting on media reports, but the record has been summoned by the Chief Justice suo motu and placed before this Court for further proceedings. On the question of application of mind, I find that the order itself is bereft of any reasoning except that which can be ferreted out from the judgment that the witnesses so far produced, do not implicate the respondents. I will be adverting to the powers of this Court after considering the other aspect urged which was that this petition is nothing but an exercise of powers under Section 439(2) of the Code of Criminal Procedure which requires some supervening 15 events of a grave nature to justify the Court in canceling bail, whether under those provisions or suo motu under Section 401 or 397 of the Code of Criminal Procedure. 16. Mr.Jagdish Vats, learned counsel appearing for respondent No.4, submits that even the watchman has not identified the accused-respondents and that the medical evidence overwhelmingly pointed out the cause of death not by used to resort to physical violence by any of the respondents but because of other factors. He submits that the doctor, who is an ENT Expert and who examined Aman Kachroo did not say that the perforation injury was fresh but was an old wound. Learned counsel submits that the most likely cause of death of Aman was the heart ailment which stood established on the record. 17. Learned Advocate General has urged that the order of the learned trial Court stops short of pronouncing a final judgment, otherwise all that had to be said has been indicated by implication in the order. He submits that of the evidence examined, it is not correct to urge that only formal witnesses are required to be examined, the witnesses to be examined are material. They are inter alia the Registrar, RPGMC who treated the deceased alongwith other students who were ragged, doctors to prove MLC, the histopathology report, handwriting expert, evidence of the witness who had the statements of the witnesses recorded under 16 Section 164 of the Code. They cannot be said to be formal as they were to be examined on material aspects of the case which would have a bearing not only to establish the cause of death of the deceased but also corroboration etc. of the other evidence which has been brought on the record of the case. He submits that the learned Court below has decided the application in haste in total disregard to the law and facts. The bail application having been rejected by the trial Court on 31.8.2009 by assigning cogent reasons, the Court has shown undue haste in granting bail to the respondents without considering the fact that the recording of the evidence of the prosecution according to the dates fixed by the trial Court, would come to an end on 6.8.2010. He submits that there was no need to have entertained these applications and disposed them of in the middle of July, 2010. Learned Advocate General then submits that there has been total non- application of mind because in the reply filed to the bail applications before the learned trial Court, specific averment has been made about involvement of three of the respondents in FIR No.286/08, dated 26.7.2008 for various offences as noted above which was pending adjudication but the learned trial Court does not consider them at all. He then refers to the evidence of PW-4 Ashish Saklani, PW-6 Seemant Malhotra, PW-13 Bhuvan Verma, PW-15 Abhinav Awasthi and the postmortem report on record as also to the evidence 17 of PW-22 Dr.D.P. Swamy who admits that the injuries found on the deceased can be possible by slaps and fist blows. He submits that this evidence prima facie establishes the case of the prosecution. In these circumstances, he submits that the learned trial Court has been selective if at all it is to be considered that the order is a reasoned judgment, selecting a few lines from the evidence of a select few witnesses to reach a conclusion which cannot under any circumstances be described as legal and proper exercise of jurisdiction. 18. Learned Advocate General places reliance on the judgment of the Supreme Court in Satish Jaggi vs. State of Chhattisgarh and Others, 2007 Crl.L.J.2766, to urge that the evidence cannot be considered in detail at the stage of consideration of grant of bail. This exercise according to him is impermissible. The Supreme Court in Satish Jaggi’s case supra, after considering the judgment of the Chhattisgarh High Court, held:- “6. It appears that learned Chief Justice did not consider the nature and the gravity of the offence while considering the bail application of the accused. On the contrary, while considering for bail, the learned Chief Justice appears to have decided the case pending trial on merit after scrutinising the evidence. To say the least, it is against all canons of law and judicial propriety. 18 12. Normally in the offence of non-bailable also, bail can be granted if