Rajesh Rai Vs. State of U.P. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 168; [s.b. sinha & h.s. bedi, jj ] determination of compensation meaning of income of victim held, the term income has different connotations for different purposes. a court of law, having regard to the change in societal conditions must consider the question not only having regard to pay packet the employee carries home at the end of the month but also other perks which are beneficial to the members of the entire family. loss caused to the family on a death of a near and dear one can hardly be compensated on monetary terms. section 168 uses the word just compensation which, in our opinion, should be assigned a broad meaning. it cannot be lost sight of the fact that the private sector companies in place of introducing a pension scheme takes recourse to payment of contributory provident fund, gratuity and other perks to attract the people who are efficient and hard working. different offers made to an officer by the employer, same may be either for the benefit of the employee himself or for the benefit of the entire family if some facilities are being provided whereby the entire family stands to benefit, the same, must be held to be relevant for the purpose of computation of total income on the basis whereof the amount of compensation payable for the death of the kith and kin of the applicants is required to be determined. the amounts, therefore, which were required to be paid to the deceased by his employer by way of perks, should be included for computation of his monthly income as that would have been added to his monthly income by way of contribution to the family as contradistinguished to the ones which were for his benefit. from the said amount of income, the statutory amount of tax payable thereupon must be deducted. - no person accused of an offence punishable under this act shall be released on bail where the public prosecutor opposes the application unless the court was satisfied that there were reasonable grounds for the plea that he was not guilty of such offence and that he was likely to commit any offence while on bail. but subsequent offences may at best be a guard upon exercise of powers of bail in restricting the movement of the applicant or in demarding surties.orders.k. phaujdar, j.1. the matter was heard yesterday in the presence of sri satish trivedi for the applicant, sri. j.s. senger for the complainant and the learned aga for the state.2. the applicant rajesh rai stood prosecuted on the basis of an fir lodged by sri shambhu nath chopra, an advocate on this high court, on 27-5-1997 at civil lines police station allahabad. it was stated in the fir which was lodged at 9.50 p.m. that at 9.45 p.m. that night he was attacked by some goondas outside his office near yatrik hotel. it was stated, naming the applicant and one atiq, that the complainant was assaulted by them with hockey-sticks and lathis with a view to kill him. in the f.i.r. a prayer was made to the police for protection of his life and property and for restoration of possession of his office. it was alleged that the goondas wanted to take forcible occupation of his office.3. the learned counsel for the applicant referred to the injury report of the learned advocate to say that the injuries were all abrasions and contusions caused by a blunt object and not a single of them was on any vital part and thus the intention to kill could not be inferred even though the story of assault was prime facie accepted.4. the learned counsel for the applicant supported by the learned aga urged that so far the assault was concerned, certainly the injuries as per medical report were not serious. it was, however, argued that although the offence was registered as one under section 307, ipc, all the elements of an offence under sections 2 and 3 of the u.p. gangsters and anti-social activities (prevention) act, described in short hereinafter as the act, were there. it was stated that under section 2 of this act a 'gang' has been defined to mean a group of persons which acting either singly or collectively by violence or threat or show of violence, with object of gaining any undue temporal, pecuniary, material or other advantage, indulge in anti-social activities, namely, occupying or taking posssession of immovable property other than in accordance with law or setting up false claims for title or possession of immoveable property. a 'gangster' under this act means a member or a leader or organiser of a gang and the penalty is spoken of under section 3. a gangster is to be punished under this section with imprisonment for either description of a term which shall not be less than 2 years and which may extend to 10 years and also with fine which shall not be less than rs. 5000/-.5. the learned counsel for the complainant also drew my attention to section 19 of the above act indicating modified application of certain provisions of the code of criminal procedure. under sub-clause (4) of section 19 it is stated that notwithstanding anything contained in the cr.p.c. no person accused of an offence punishable under this act shall be released on bail where the public prosecutor opposes the application unless the court was satisfied that there were reasonable grounds for the plea that he was not guilty of such offence and that he was likely to commit any offence while on bail.6. it was stated that the elements of the offence under the act were very much there and so the limitation of section 19 would be applicable towards grant of bail despite non mention of an offence under this act in the fir. in reply to this, sri trivedi submitted that this argument was not tenable as the investigation has already been completed and a charge sheet has been submitted not for an offence under the said act but simply for an offence under section 307, ipc.7. so far the offence under section 307, ipc is concerned, i am of the view that injuries are of such nature that bail may not be refused to the applicant although the high sounding section 307, ipc has been indicated in the charge sheet. the real question that arises for determination is, therefore, whether the powers of the high court under section 439, cr.p.c. have been cured in any manner by section 19 of the said act or if a case under that act has been made out. in this context, a decision of the allahabad high court as reported in 1988 cri lj 620, is relevant. it was observed herein that generally a special law overrides a general law insofar as they were inconsistent. however, if the special law was not a complete code, then the general law would prevail over the special law. it was held further that the gangster act is not a complete code and did not restrict the powers under section 439, cr.p.c to deal with bail applications. even though, the argument of the learned counsel for the complainant is conceded to and it is accepted that section 19 puts a bar on the exercise of the power under section 439, cr.p.c. this court is always to look to the fir to find if the person seeking bail has been accused of an offence punishable under the said act. the fir that was made by the learned advocate on 27-5-1997 specifically spake of the incident of assault on him and there is a suggestion that the miscreants wanted to take forcible possession of his office. there was also a prayer that his life and property be served and possession of his office be restored. this suggests that the learned counsel had already been dispossessed. the fir, is however, silent as to when that dispossession was effected through this very incident of 9.45 p.m. on 25-7-97 or through any other earlier action. there is nothing to indicate about dispossession in the very incident reported to.the police nor is there any allegation as to when and how dispossession was caused. accusation means statement of facts constituting an illegal act at the instance of some person. the fir spoke of acts of assault only and not of acts of dispossession and as such it any not be stated that there were accusations of forcible dispossession at the relevant time and, as such, it may not be inferred that the fir made accusations for an offence under the said act. upon all these considerations, i feel that bail may not be refused to the present applicant for the accusation of an offence under section 307, ipc.8. through a counter-affidavit the complainant brought on record certain newspaper items and certain earlier information sent to police. the report dated 10-5-97 certainly spoke of threat of forcible grabbing of lands but it was directed against 'some anti-social elements' not indicating their identity in any manner. this report although against unknown or unnamed could have been the basis of another action but in the absence of any indication in this report about participation of the present applicant, this may not be relevant in the present case. the newspaper reports are of different dates after 27-5-97. these reports cannot overvweigh the fir which was lodged by the learned advocate himself and those newspaper items could be relevant only for purposes to show that a news item was published but not or what were the allegations, copies of firs of subsequent cases have been brought on record in which the present applicant was named as an accused. it would be open for the proper authorities to take such action that may legitimately be taken on such fir. but subsequent offences may at best be a guard upon exercise of powers of bail in restricting the movement of the applicant or in demarding surties. on the above considerations, it is directed that the applicant, rajesh rai, in case crime no. 457 of 1997, under sections 307, 448, 427, 370, 504, 508, ipc, p.s. civil lines, allahabad may be released on bail of such amount with two local sureties of such nature as the court of the first instance may deem fit. looking to be subsequent cases started against the applicant, it is directed that one of the conditions of bail would be that he would, till the date of completion of trial, keep himself out of the jurisdiction of police station civil lines, allahabad. this restriction may, however, be relaxed by the trial court on the prayer of the applicant under proper circumstances.9. the bail application stands disposed of accordingly.

Judgment:
ORDER

S.K. Phaujdar, J.

1. The matter was heard yesterday in the presence of Sri Satish Trivedi for the applicant, Sri. J.S. Senger for the complainant and the learned AGA for the State.

2. The applicant Rajesh Rai stood prosecuted on the basis of an FIR lodged by Sri Shambhu Nath Chopra, an advocate on this High Court, on 27-5-1997 at Civil Lines Police Station Allahabad. It was stated in the FIR which was lodged at 9.50 p.m. that at 9.45 p.m. that night he was attacked by some goondas outside his office near Yatrik Hotel. It was stated, naming the applicant and one Atiq, that the complainant was assaulted by them with hockey-sticks and lathis with a view to kill him. In the F.I.R. a prayer was made to the police for protection of his life and property and for restoration of possession of his office. It was alleged that the goondas wanted to take forcible occupation of his office.

3. The learned counsel for the applicant referred to the injury report of the learned advocate to say that the injuries were all abrasions and contusions caused by a blunt object and not a single of them was on any vital part and thus the intention to kill could not be inferred even though the story of assault was prime facie accepted.

4. The learned counsel for the applicant supported by the learned AGA urged that so far the assault was concerned, certainly the injuries as per medical report were not serious. It was, however, argued that although the offence was registered as one under Section 307, IPC, all the elements of an offence under Sections 2 and 3 of the U.P. Gangsters and Anti-social Activities (Prevention) Act, described in short hereinafter as the Act, were there. It was stated that under Section 2 of this Act a 'gang' has been defined to mean a group of persons which acting either singly or collectively by violence or threat or show of violence, with object of gaining any undue temporal, pecuniary, material or other advantage, indulge in anti-social activities, namely, occupying or taking posssession of immovable property other than in accordance with law or setting up false claims for title or possession of immoveable property. A 'gangster' under this Act means a member or a leader or organiser of a gang and the penalty is spoken of under Section 3. A gangster is to be punished under this Section with imprisonment for either description of a term which shall not be less than 2 years and which may extend to 10 years and also with fine which shall not be less than Rs. 5000/-.

5. The learned counsel for the complainant also drew my attention to Section 19 of the above Act indicating modified application of certain provisions of the Code of Criminal Procedure. Under Sub-clause (4) of Section 19 it is stated that notwithstanding anything contained in the Cr.P.C. no person accused of an offence punishable under this Act shall be released on bail where the Public Prosecutor opposes the application unless the Court was satisfied that there were reasonable grounds for the plea that he was not guilty of such offence and that he was likely to commit any offence while on bail.

6. It was stated that the elements of the offence under the Act were very much there and so the limitation of Section 19 would be applicable towards grant of bail despite non mention of an offence under this Act in the FIR. In reply to this, Sri Trivedi submitted that this argument was not tenable as the investigation has already been completed and a charge sheet has been submitted not for an offence under the said Act but simply for an offence under Section 307, IPC.

7. So far the offence under Section 307, IPC is concerned, I am of the view that injuries are of such nature that bail may not be refused to the applicant although the high sounding Section 307, IPC has been indicated in the charge sheet. The real question that arises for determination is, therefore, whether the powers of the High Court under Section 439, Cr.P.C. have been cured in any manner by Section 19 of the said Act or if a case under that Act has been made out. In this context, a decision of the Allahabad High Court as reported in 1988 Cri LJ 620, is relevant. It was observed herein that generally a special law overrides a general law insofar as they were inconsistent. However, if the special law was not a complete code, then the general law would prevail over the special law. It was held further that the Gangster Act is not a complete code and did not restrict the powers under Section 439, Cr.P.C to deal with bail applications. Even though, the argument of the learned counsel for the complainant is conceded to and it is accepted that Section 19 puts a bar on the exercise of the power under Section 439, Cr.P.C. this Court is always to look to the FIR to find if the person seeking bail has been accused of an offence punishable under the said Act. The FIR that was made by the learned advocate on 27-5-1997 specifically spake of the incident of assault on him and there is a suggestion that the miscreants wanted to take forcible possession of his office. There was also a prayer that his life and property be served and possession of his office be restored. This suggests that the learned counsel had already been dispossessed. The FIR, is however, silent as to when that dispossession was effected through this very incident of 9.45 p.m. on 25-7-97 or through any other earlier action. There is nothing to indicate about dispossession in the very incident reported to.the police nor is there any allegation as to when and how dispossession was caused. Accusation means statement of facts constituting an illegal act at the instance of some person. The FIR spoke of acts of assault only and not of acts of dispossession and as such it any not be stated that there were accusations of forcible dispossession at the relevant time and, as such, it may not be inferred that the FIR made accusations for an offence under the said Act. Upon all these considerations, I feel that bail may not be refused to the present applicant for the accusation of an offence under Section 307, IPC.

8. Through a counter-affidavit the complainant brought on record certain newspaper items and certain earlier information sent to police. The report dated 10-5-97 certainly spoke of threat of forcible grabbing of lands but it was directed against 'some anti-social elements' not indicating their identity in any manner. This report although against unknown or unnamed could have been the basis of another action but in the absence of any indication in this report about participation of the present applicant, this may not be relevant in the present case. The newspaper reports are of different dates after 27-5-97. These reports cannot overvweigh the FIR which was lodged by the learned advocate himself and those newspaper items could be relevant only for purposes to show that a news item was published but not or what were the allegations, Copies of FIRs of subsequent cases have been brought on record in which the present applicant was named as an accused. It would be open for the proper authorities to take such action that may legitimately be taken on such FIR. But subsequent offences may at best be a guard upon exercise of powers of bail in restricting the movement of the applicant or in demarding surties. On the above considerations, it is directed that the applicant, Rajesh Rai, in Case Crime No. 457 of 1997, under Sections 307, 448, 427, 370, 504, 508, IPC, P.S. Civil Lines, Allahabad may be released on bail of such amount with two local sureties of such nature as the Court of the first instance may deem fit. Looking to be subsequent cases started against the applicant, it is directed that one of the conditions of bail would be that he would, till the date of completion of trial, keep himself out of the jurisdiction of police station Civil Lines, Allahabad. This restriction may, however, be relaxed by the trial Court on the prayer of the applicant under proper circumstances.

9. The bail application stands disposed of accordingly.