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Judgment
S. R. Singh and R.K. Dash, JJ.—In this writ petition under Article 226 of the Constitution, the Petitioners who are incriminated in Case Crime No. 286 of 2000 under Sections 292, 293 and 505, I.P.C. Police Station, Baramandal, district Almora have pressed into service the following reliefs.
(i) Issue an order or direction in the nature of certiorari quashing the F.I.R. dated 20.4.2000 contained in Annexure-1 to the writ petition.
(ii) Issue a writ order or direction to initiate the C.B.I. investigation into the whole matter including the activity of Sahyog upto the stage of lodging of F.I.R. and thereafter.
(iii) Issue a writ, order or direction in the nature of certiorari quashing the show cause notice dated 22.4.2000 (Annexure-10) issued by District Magistrate, Almora.
(iv) Issue an appropriate writ order or direction to the Respondent to enlarge the Petitioner Nos. 1 to 6 on bail and to set them at liberty.
(v) Pass such other and further order which this Hon''ble Court may deem fit and proper in the facts and circumstances of the case.
(vi) Award costs.
(vii) Issue a writ, order or direction commanding the State of U. P. to pay a compensation which this Hon''ble Court may deem fit and proper in the facts and circumstances of the case, which according to the Petitioners appear to be not less than Rs. 20,000 for each Petitioner.
(viii) To punish the Police Officer/ Officers found guilty of the contempt of the Hon''ble Supreme Court.
Petitioners 1 to 5 are associated with ''Sahyog'', a non-Government Organisation registered under the Indian Societies Registration Act, 1860 and the Foreign Contribution Regulation Act, 1976. It is stated that the said Organisation was constituted to work for the larger cause of the Society inasmuch ''as it imparts education on health and education with special focus on women''s health''. The aforesaid society betook a research to explore the possibility of spread of HIV/AIDS in Uttarakhand Region. With the avowed object of creating awareness of AIDS, the society published a study report captioned as ''Aids Aur Hum''-(Uttarakhand Me Aids Ki Sambhawna).
On 20th April 2000, at about 3 p.m. it is alleged, the local goons barged into the Sahyog Head Office and gate-crashed into the Secretary''s, i.e., Ms Joshdhara Dasgupta''s room, uttered profanities and broke the window panes, etc. At about 4.30 p.m., the local police materialised at the scene, seized all copies of the report accusing the organisation of printing filthy and pornographic materials and rounded up Ms Jashodhara Dasgupta and three others. A first information report was lodged the very day. Thereupon, they were made aware that they had been taken into custody because atmosphere in the area was surcharged with frayed tempers and hostility. This incident enjoyed great media hype in different national newspapers playing an incendiary role to work up the sentiments of the people which led to frayed tempers. As a sequel, some more proceedings in the nature of preventive action under Sections 107/116 and 151, Cr. P.C. and also u/s 133, Cr. P.C. were initiated. The further case of the Petitioners is that after they were arrested, no legal assistance was provided so as to enable them to move the Court for bail. It is specifically stated that Ms Tulika Srivastava, a practising advocate and Human Rights activist, was not permitted to meet the Petitioners and/or to move bail application on their behalf owing to hostile resistance of the members of the local bar, police officials besides the local people of Almora. It is further alleged that entire atmosphere was vitiated due to misreading of bits of information published by Sahyog in their report-''Aids Aur Hum''. In the supplementary-affidavit, credence has been placed on the clipping of news item published in Amar Ujala dated 5.5.2000 to prop up the case that the Petitioners were handcuffed and brought bare-footed from the District Jail Almora to the Court of Chief Judicial Magistrate on 4.5.2000 parading them through main market. An application for bail was moved on behalf of the Petitioners before the Chief Judicial Magistrate, Almora. A contention was raised on behalf of the prosecution that the report has impaired and diminished the status of the people residing in the hill area in the eyes of the whole world culminating in agitation and movement in the Uttarakhand region. The Chief Judicial Magistrate rejected the bail application without assigning any reason whatsoever. Since the Petitioners have moved this Court in the present petition seeking quashing of the F.I.R. and other ancillary reliefs as excerpted above, including prayer for bail in the present proceedings instead of moving the Sessions Judge, stemming from the ground that the atmosphere there is antithetical to fair hearing.
We have heard Sri Ravi Kiran Jain, senior counsel appearing for the Petitioners, Sri Amar Jeet Singh, learned A.G.A. representing the State authorities, Sri L. P. Naithani senior advocate, assisted by Sri Sudhanshu Dhuliya, counsel appearing for the Respondents at a prolix length particularly on the question of bail, for in our opinion, the matter commends full dressed hearing after exchange of affidavits between the parties.
Sri Ravi Kiran Jain, for the Petitioners, has contended that except the offence u/s 505, I.P.C., other offences are bailable and so far as Section 505, I.P.C. is concerned, no offence whatsoever is made out and to cap it all, the maximum punishment provided therein is 3 years'' R.I. and by now, the Petitioners have already suffered incarceration for more than a month and, therefore, in the facts and circumstances of the case, the Petitioners'' prayer for bail should be allowed. Sri Jain further canvassed that some fundamentalists made the situation worse inasmuch as they entered the courtroom of the Chief Judicial Magistrate, Almora and provoked furore as a result of which the learned Magistrate rejected the bail application fearing a fundamentalist backlash.
Learned A.G.A. Amarjeet Singh and Sri Naithani appearing for the Respondents, opposed the prayer for bail and strenuously contended that though there is no dearth of power under Article 226 of the Constitution to grant interim bail pending writ petition, the Petitioners should have availed of the forum u/s 439, Cr. P.C., further that no prima facie case for quashing the F.I.R. is made out and besides the situation in the area being surcharged with emotions, they should not be admitted to bail. Sri Naithani has specifically urged that the report published by Sahyog in its report ''Aids-Aur-Hum'' has offended the sentiments of the people of entire Uttarakhand and this should be reckoned with by the Court while dealing with the Petitioners'' prayer for interim bail.
Since the issue is emotively sensitive, we have heard the counsel for the parties at prolix length and scrupulously scanned the materials available on the record. Before delving into the contentions raised at the bar, we feel called to dwell on duties of a Judge while dealing with law matters. We call in aid certain Latin apophthegms/maxims. Concientia Legalise Lege Fundature which signifies that legal conscience must be founded upon law ; Concientia Legi, Nunquam contravenit which gives out that legal conscience never contravenes law ; Concientia Legis ex legi Pendet which connotes that conscience of a Judge in law Court depends upon law. We have brought to bear the aforesaid legal maxims because a contention has been raised by Sri Naithani that the Courts should bear in mind the public sentiments while determining the Petitioners'' prayer for bail. Since the Petitioners have prayed for quashing of the F.I.R. and other ancillary reliefs which may entail full fledged hearing, we propose to take up the matter in the month of July and hence we forbear from pronouncing upon the merit as to whether prima facie case under the relevant provision of the I.P.C. is made out as it would amount to prejudging the issue.
So far as bail is concerned, both the High Court and the Sessions Judge have concurrent powers u/s 439, Cr. P.C. to deal with the prayer for bail and in the present fact scenario, the question that crops up is whether the Petitioner will be allowed by the people of this region to have their bail application considered in a judicious atmosphere, if they are relegated to the Sessions Court for bail? Even according to Sri Naithani, the tempers are running high in the entire Uttarakhand region due to publication of the controversial report in ''Aids-Aur-Hum'' published by Sahyog and in the situation when the entire region is said to be in fermentation, we feel inclined to entertain the prayer for interim bail. The question whether a case is made out is a question, which has to be determined in the main petition but in the fact situation of the case, we do not feel that it would be inappropriate for us to consider the Petitioners'' prayer for bail pending disposal of the writ petition. It brooks no doubt that application for bail u/s 439, Cr. P.C. is to be decided by a single Judge but as stated supra, since relief has been sought for quashing the F.I.R., the ancillary relief of bail can be decided by a Division Bench.
It is worthwhile to quip here that during the pendency of the writ petition, the District Magistrate, Almora, passed an order of preventive detention in exercise of power under Sub-Section 3 (3) read with Sub-section (2) of Section 3 of the National Security Act, 1980. The said order even according to Sri Naithani was totally uncalled for and has been rightly recalled.
Accordingly, it is ordered that the Petitioners 1 to 6 be enlarged on bail on condition that they with two sureties will enter into bond in a sum of Rs. 20,000 each. The bonds and sureties will be subject to the satisfaction of the C.J.M., Almora.