Bhupinder Singh Vs Delhi
Bhupinder Singh Vs Delhi
Bhupinder Singh Vs Delhi
Versus
WITH
Versus
AND
Versus
CORAM:
HON’BLE MR. JUSTICE M.L. MEHTA
1. These three petitions are directed against the order dated 30.4.2011
172/2011, under Sections 307/34 IPC, P.S. Model Town. They were granted
bail by the learned M.M. vide order dated 21.4.2011. The complainant
challenged the said order in revision before the learned ASJ, who vide
impugned order dated 30.4.2011, cancelled the bail of all the petitioners and
thereby set aside the order dated 21st April, 2011 of learned M.M. The
petitioners filed bail applications No. 721/2011 and 736/2011 before this
court and vide orders dated 24th May, 2011 and 27.5.2011, they were granted
withdrew the said bail applications and as per the liberty granted by this
Chaudhary. Besides the petitioners, the other persons arrayed as accused are
Rajinder Singh, Jaspal Singh Aneja and Gurjeet Singh Aneja. All the three
of them are on anticipatory bail granted by this court vide order dated
3.6.2011.
4. The allegations are that on 20th April, 2011 at about 9.20 p.m., the
complainant had come to his new house D-14A/20, Model Town II with his
uncle Ajay and two friends and when they were returning, they found
accused Jaspal, Gurjeet, Anil Modi and Rajender Singh alongwith 8-10
persons standing on the corner of the road. On seeing the car of the
complainant, accused Gurjeet took out his pistol and all of them came
towards their car. Gurjeet tried to open the door of his car, which he
(complainant) locked from inside. Accused Jaspal and Anil Modi came in
front of the car and tried to stop it whereupon Ajay, who was driving the car
accelerated the speed. On this, all of them exhorted Gurjeet to fire at the
they all escaped unhurt. Some one hit their car with something from
behind. The complainant alleged that all of them attacked them with the
5. The petitioners were produced before the learned M.M. on 21st April,
2011. He noticed some lapses on the part of the Investigating Officer i.e. the
arrest memo did not find mention of the time and place of arrest of the
petitioners, the case diaries had not been prepared, the vehicle in which the
complainant had been sitting at the time of incident had not been seized, the
investigation was not completed within 24 hours of the arrest of the accused
persons and the statement of the witnesses had not been recorded. Taking
note of these facts, the learned M.M. released the petitioners on bail on the
conditions that they shall not commit the similar offences, they would take
part in the investigation as and when required, and further they would not
6. The learned ASJ cancelled the bail orders of the learned M.M. mainly
on the ground that the learned M.M. did not have the power to grant bail to
the petitioners in the offence under Section 307 IPC. The learned ASJ was
of the view that it was not only that the offence under Section 307 IPC was
exclusively triable by the Court of Sessions, but that the accused persons
while attempting to commit murder have also caused hurt to the complainant
in terms of the definition of “hurt”. He was of the view that as per Section
319 IPC, „hurt‟ includes bodily pain, disease and infirmity. While recording
that there was no bodily pain or disease suffered by the complainant in the
incident, he was of the view that the complainant could be said to have
suffered infirmity at the hands of the accused persons. Learned ASJ relied
7. The learned ASJ proceeded to observe that when a person has been
that the definition of “injury” as given in Section 44 IPC also includes any
harm of the mind. He observed that it cannot be said that because there was
opined that the complainant certainly suffered infirmity within the meaning
of Section 319 IPC and so it can be said that hurt was caused to him. Based
upto 10 years or fine and so, the M.M. had no jurisdiction to grant bail under
Section 437(1)(i) CrPC to the petitioners unless the case falls under any of
the provisos. He opined that since there was nothing to bring the case within
any of the provisos, the order of bail passed by the learned M.M. was
the petitioners.
8. I have heard learned counsel for the petitioners and also APP for the
State and perused the records. The question that arises for consideration
here is as to whether in the given facts and circumstances, the M.M. was
competent and had jurisdiction to grant bail in an offence under Section 307
The Section under which a Magistrate has the authority to grant bail in such
cases is Section 437 CrPC. The relevant part thereof reads thus:
[(1) When any person accused of, or suspected of, the commission of any
non-bailable offence is arrested or detained without warrant by an officer
in charge of a police station or appears or is brought before a court other
than the High Court or Court of Session, he may be released on bail, but-
“Provided also that no person shall, if the offence alleged to have been
committed by him is punishable with death, imprisonment of life, or
imprisonment for seven years or more, be released on bail by the Court
under this sub-section without giving an opportunity of hearing to the
Public Prosecutor”.
10. There is no dispute with regard to the legal proposition that ordinarily
a Magistrate does not grant bail in the sessions triable cases which are
punishable with imprisonment for life or death penalty unless the matter is
covered by any of the provisos under Section 437 CrPC. If the offences are
exclusively triable by the Court of Sessions and are not punishable with life
imprisonment or death then the M.M. can also grant bail provided the public
11. In the given facts and circumstances, there is also no dispute that the
the offence allegedly committed by the petitioners was punishable with life
12. Section 307 IPC makes the offence of attempt to commit murder
punishable with life imprisonment upto to 10 years or fine. The latter part of
this Section provides that if the hurt is caused to any person by such act, the
this provision, it would be seen that in the act of attempt to murder falling
within the first part of Section 307 IPC, the punishment prescribed was
imprisonment upto 10 years and fine. However if the hurt was caused in the
13. There is no dispute that if the complaint of the petitioners falls within
the first part, then the imprisonment was to be 10 years and fine and
Magistrate was competent to grant bail. However, if there was hurt caused
to any person by such act, the imprisonment was to be for life or 10 years.
14. The learned ASJ has taken note of the definition of “hurt” as provided
whether infirmity would also constitute the hurt within the ambit of Section
307 IPC. There is no doubt that bodily pain, disease and infirmity would
constitute hurt and is punishable under Section 321 IPC. The question for
319 IPC would be enough to bring the case within the ambit of later part of
Section 307 IPC. To my mind, this would be importing into Section 307
described and was to bring the case within the second part of Section 307
IPC and make the offences punishable with life imprisonment was not of the
type of hurt which is defined in Section 319 IPC or the injury which is
elaborated in Section 44 of IPC. If this was so, then in every case of attempt
was the intention of legislature to bring into the ambit all kinds of hurt and
mind, hysteria, then there was no need to have distinction in the punishment
in the first part and second part of the Section 307 IPC. For seeing as to what
was the type of hurt which was envisaged in second part of Section 307 IPC,
one can see illustration „C‟ appended to the said section. The said
“(c) A, intending to murder Z, buys a gun and loads it. A has not yet
committed the offence. A fires the gun at Z. He has committed the offence
defined in this section, and if by such firing he wounds Z, he is liable to the
punishment provided by the latter part of the first paragraph of] this
section”.
15. In the aforesaid illustration, the word “wounds” has been
intentionally used to impress upon and clarify the type of hurt that would
come within the ambit of second part of Section 307 IPC. It is the hurt that
would result in wounds which would be within the ambit of second part of
Section 307 IPC. In other words, it is not every type of hurt that is
envisaged in Sections 319 IPC or 44 IPC, but only the type of hurt which has
resulted in infliction of some physical injury which would bring the case
within the purview of second part of Section 307 IPC and make the offence
Sections 319 and 44 IPC into the definition of “hurt” covered under Section
307 IPC, the court would be substituting its views with those of the
Crl.M.Cs. 3153/11, 1670/11 & 3123/11 Page 8 of 10
2011:DHC:6264
the words of the statute are clear and unambiguous, the provision should be
given its plain and normal meaning, without adding or rejecting any words.
pose a great risk as the changes may not be what the legislature intended or
judge. Since Section 307 IPC read in the guidance of its illustration does not
leave any ambiguity, the plain and normal meaning has to be given to the
words used in this section. Further, since there was neither any confusion
nor any absurdity or repugnancy, the interpreting tools could not be used to
add or omit the words in the statute. If the legislature intended to have full
gamut of hurt and injury to be within the ambit of Section 307 IPC, the same
would have been so provided and explained through illustration. That was
presumably not done because the very act of attempt to murder itself has
bereavement etc. All such types of hurts were not to be punishable with life
imprisonment.
17. In view of the above discussion, I am of the considered view that the
which would fall within the first part of Section 307 IPC and the same being
18. In view of the above, the order of learned ASJ dated 30.4.2011 is set
aside and the petitions are allowed. Consequently, the order of learned
M.L. MEHTA
(JUDGE)
DECEMBER 07, 2011
akb